ILANA DIAMOND ROVNER, Circuit Judge.
Willie Corbin, Jr., pled guilty to being a felon in possession of a firearm. After an evidentiary hearing, the district court found that Corbin had committed an aggravated assault while possessing the gun and calculated Corbin's sentence as if he had been convicted of that offense. Corbin contends that the district court erred in four ways: (1) in calculating the sentence, the court entertained evidence of a crime (aggravated assault) not charged in the indictment; (2) the court relied upon hearsay in finding that Corbin had committed an aggravated assault; (3) the court required only clear and convincing evidence of the aggravated assault rather than proof beyond a reasonable doubt; and (4) the court denied Corbin a two-level reduction for the acceptance of responsibility. We find none of these arguments to be meritorious and affirm.
On June 8, 1991, Corbin was arrested in possession of a .32 Smith & Wesson caliber Clerke 1st revolver in Kokomo, Indiana. A grand jury subsequently indicted Corbin, a convicted felon, on charges that he knowingly possessed a firearm that had moved in interstate commerce and that also had an obliterated serial number. See 18 U.S.C. §§ 922(g)(1), 922(k). Corbin elected to plead guilty to the felon-in-possession charge, and the government dropped the obliterated serial number charge.
On January 31, 1992, District Judge Sarah Evans Barker conducted both a plea and sentencing hearing.
The focus of the proceeding then shifted to the circumstances surrounding Corbin's possession of the gun. In the presentence report, the probation officer had applied a cross-referencing provision of the guideline governing firearms offenses and calculated the sentencing range as if Corbin had been convicted of unlawful restraint. See United States Sentencing Commission, Guidelines Manual, § 2K2.1(c)(1)(A) (Nov. 1991).
Corbin concedes that he had a gun in his possession when he was arrested on June 8, 1991.
The government has portrayed a different scenario, which the district court credited after hearing the evidence. The government elicited testimony from three witnesses: Detective Sergeant David Mitchell and Lieutenant Thomas A. DiNardo of the Kokomo Police Department, and Agent B. David Gilbert of the Bureau of Alcohol, Tobacco and Firearms. In addition, the court admitted into evidence Eason's sworn statement.
In her statement, Eason explained that she and Corbin had been romantically involved a year before the incident and had lived together briefly. Eason said she ultimately had broken off the relationship and that she had had difficulty with Corbin since that time.
Eason described the events of June 8, 1991 as follows. She had visited Killibrew's apartment to style his hair. Davis and Benny Pollard were there also. Corbin entered the
Lieutenant DiNardo recounted the following sequence of events. He and Sergeant Richard Nutt were driving in the area of Killibrew's apartment shortly before 5:00 p.m. on June 8 when Earl Davis came running from between several houses and flagged their car down. Davis was very agitated and told the officers, "You better get him before he kills someone!" Davis explained there had been a problem involving Corbin, indicated that Corbin had a gun, and pointed them in the direction of an apartment building where Corbin and the others remained. DiNardo and Nutt drove to that building. When they radioed in their location upon arrival, the police dispatcher informed them that someone else had also reported a disturbance at the same location.
The officers could hear screaming and yelling coming from the rear of the building as they approached, and they soon discovered four individuals — Corbin, Eason, Killibrew, and Larry Harrison
Eason "was crying, somewhat disoriented, and appeared to be in an emotional state." DiNardo observed a "round reddened spot" near her left eye that he believed to be consistent with the caliber of the gun taken from Corbin. Eason informed DiNardo that "Willie Corbin had struck her in the face with a hand gun and then put the gun to her head. She stated that he told her that he would kill her if she didn't leave the apartment with him." Eason told DiNardo she had feared for her life. She agreed to be interviewed further at the police station.
Corbin, who was also in an emotional state, repeatedly interrupted DiNardo's interview with Eason and attempted to plead his case. When Nutt attempted to calm him down, Corbin became argumentative and Nutt arrested him.
DiNardo and another police officer also interviewed Killibrew briefly. DiNardo said he observed a red mark on Killibrew's face as well. Killibrew told DiNardo that he had fought with Corbin on a porch outside Killibrew's second-story apartment and that Corbin had struck him in the head with a gun during the fracas.
Detective Sergeant Mitchell interviewed Eason when she arrived at the police station. Like DiNardo, Mitchell noticed a small, circular, red swelling beneath her left eye that was about the size of a dime. Mitchell thought the mark was "somewhat consistent" with the size of a .32 caliber handgun. Mitchell explained that he interviewed Eason informally at first, but later took a formal statement from her that was recorded and eventually transcribed. Eason reviewed the transcribed statement with him two days later and signed it in his presence. Mitchell maintained that the statement accurately reflected what Eason had told him, and although he acknowledged that he and Eason had discussed some matters that were not included in the statement, Mitchell represented that nothing Eason had said to him was inconsistent with her statement. Mitchell also indicated that Eason never said anything suggesting that she believed Corbin's gun was defective.
Mitchell had also interviewed Killibrew,
Agent Gilbert, the final witness for the government,
Corbin presented three witnesses in his defense, none of whom were present at the June 8 incident. Each of them offered testimony that impeached Eason's credibility to some extent. Corbin's mother testified that Eason had described herself as an alcoholic and that she had seen Eason drinking and exhibiting signs of intoxication on several occasions. She had also seen Eason with Corbin a number of times and Eason had not acted as if she were afraid of him. Corbin's step-brother similarly testified that Eason had not expressed any fear of Corbin in any of the conversations he had had with her. He testified further that based on his discussions with Eason and with others in the community, he believed her to be a liar. Finally, Corbin's sister testified that about a month before the sentencing hearing, Eason had approached her and said that she didn't want to get Corbin into trouble. She too said that Eason had not exhibited fear of Corbin.
In rebuttal, the government recalled Gilbert, who reiterated that when he spoke with Eason on October 31, 1991, Eason told him that "[s]he didn't want anything to do with" Corbin. According to Gilbert, Eason was reluctant to testify because she feared retaliation from Corbin and his family. Eason had explained to Gilbert that Corbin had assaulted her on other occasions and seemed to think that he "owned" her.
Based on that finding, the court calculated Corbin's sentence in accordance with Guidelines section 2A2.2, which governs aggravated assault. Beginning with a base offense level of 15 (§ 2A2.2(a)), the court added four levels for use of a firearm in committing the assault (§ 2A2.2(b)(2)(B)), two levels for the infliction of bodily injury (§ 2A2.2(b)(3)(A)), and finally, two additional levels for more than minimal planning (§ 2A2.2(b)(1)). (Tr. at 195, 200.)
The district court denied Corbin a two-level reduction under section 3E1.1 for acceptance of responsibility. Although Corbin had pled guilty, the court found that Corbin had not "come around to a point of genuinely accepting responsibility." (Tr. at 200.) Corbin had given a markedly different account of the events of June 8 in both a letter his counsel had written to the probation officer for purposes of the presentence report and in remarks Corbin himself had volunteered at the time of his plea. The court observed that the version of events Corbin had given in these two statements tended to exonerate him for everything but simple possession of a firearm. (Id. at 200-01.) In particular, the court noted that Corbin maintained the gun was Killibrew's and that he had not brought it to Killibrew's apartment. (Id. at 201.) In the court's view, such representations signaled that Corbin had not truly accepted responsibility for what he had done. (Id.)
The various adjustments brought Corbin's offense level to 23. With a criminal history category of III, this yielded a sentencing range of 57 to 71 months of incarceration. The court imposed a sentence in the middle of the range — 64 months — to be followed by three years of supervised release.
Corbin filed a timely notice of appeal from his sentence.
A. Sentencing Based on the Uncharged Offense of Aggravated Assault
Corbin's threshold objection focuses on the use of the guideline governing aggravated assault to calculate his sentence. Corbin argues that because he was never charged with aggravated assault and did not enjoy the opportunity to confront and cross-examine the witnesses against him or any of the other rights to which a trial on this charge would have entitled him, due process precluded the district court from sentencing him as if he had been convicted of this offense.
When Judge Barker calculated Corbin's sentence with reference to the circumstances surrounding his possession of the gun, she followed the express command of the Guidelines. Section 2K2.1(c), which applies to offenses involving the unlawful possession of firearms, provides:
Section 2X1.1(a) in turn directs the court to use the base offense level for the underlying substantive offense, which in this case was aggravated assault (§ 2A2.2). This type of cross-referencing is based on the premise that a convicted person should be given a sentence that takes into account the full range of his or her conduct and thus reflects the reality of the crime. See generally U.S.S.G. § 1B1.3(a)(1) (defining relevant conduct to include "all acts and omissions committed . . . by the defendant . . . that occurred during the commission of the offense of conviction . . . or that otherwise were in furtherance of that offense"); United States v. Masters, 978 F.2d 281, 284-85 (7th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 2333, 124 L.Ed.2d 245 (1993); see also United States v. Mason, 974 F.2d 897, 898, 899 (7th Cir.1992); United States v. Madewell, 917 F.2d 301, 306 (7th Cir.1990).
In view of the express language of the cross-referencing provision at issue here, it was not only appropriate for the district judge to calculate Corbin's sentence in the way she did, but required. See United States v. Smith, 910 F.2d 326, 330-31 (6th Cir.1990) (per curiam) (vacating sentence where district court failed to cross-reference). Thus, we have previously upheld a felon-in-possession sentence that was enhanced exactly as Corbin's was here — on a finding that the defendant had committed aggravated assault. Madewell, 917 F.2d at 306; see also United States v. Concepcion, 983 F.2d 369, 386-88 (2d Cir.1992), petition for cert. filed (U.S. June 23, 1993) (No. 92-9190); United States v. Harris, 932 F.2d 1529, 1537 (5th Cir.), cert. denied, ___ U.S. ___, ___, 112 S.Ct. 270, 324, 116 L.Ed.2d 223 (1991) and ___ U.S. ___, 112 S.Ct. 914, 116 L.Ed.2d 814 (1992); United States v. Willis, 925 F.2d 359, 360-61 (10th Cir.1991); United States v. Perez, 897 F.2d 751, 752-53 (5th Cir.), cert. denied, 498 U.S. 865, 111 S.Ct. 177, 112 L.Ed.2d 141 (1990); United States v. Shinners, 892 F.2d 742, 743 (8th Cir.1989) (per curiam). Cf. United States v. Cherif, 943 F.2d 692, 702-03 (7th Cir.1991) (although defendant had been convicted of mail and wire fraud, district court properly referenced insider trading guideline in fashioning appropriate sentence), cert. denied, ___ U.S. ___, 112 S.Ct. 1564, 118 L.Ed.2d 211 (1992).
Corbin attempts to distinguish Madewell, noting that he pled guilty whereas Madewell was tried and convicted by a jury. But that distinction is irrelevant insofar as cross-referencing is concerned. Like Corbin, Madewell was never charged with aggravated assault and was convicted on a felon-in-possession charge alone. Nonetheless, Madewell's sentence was calculated using Guidelines section 2A2.2 after the district court found that he had committed aggravated assault with the gun. Although that finding may have rested on the evidence presented at trial, it was the court, and not the jury, that rendered the finding. See 917 F.2d at 306-07. Thus, like Corbin, Madewell did not enjoy the benefit of a trial on an aggravated assault charge.
We have also rejected arguments akin to Corbin's constitutional contention that he may not be sentenced with reference to a Guideline provision governing an offense on which he was not tried and convicted. In Mason, we reviewed the sentence of a defendant who had pled guilty to a felon-in-possession charge. After an evidentiary hearing, the district court concluded that Mason had committed forcible rape while in possession of the gun and therefore calculated his offense level with reference to the guideline governing the offense most similar to rape. The resulting increase in Mason's offense level was, as we noted, "dramatic." 974 F.2d at 899. Mason argued that it contravened due process to sentence him as a rapist when he had not been convicted of sexual assault and, indeed, a sexual assault charge against him in state court had been dismissed. See id. at 898-99. We rejected that argument without extended discussion, reasoning, as
Our opinion in Masters suggests why the constitution does not preclude the court from calculating the defendant's sentence based on the actual nature of the conduct underlying the offense of conviction. Masters was convicted of racketeering and conspiracy to commit racketeering. However, the district court found that Masters was responsible for his wife's murder and sentenced him using the murder guideline. The consequences of the cross-reference calculation were once again dramatic: instead of the 33 to 41 months he otherwise would have received under the racketeering guideline, Masters was sentenced to two consecutive terms of 20 years (the statutory maximum). Masters argued that the district court was precluded from finding him responsible for killing his wife because the jury had not checked "murder" in the special verdict form that asked it to identify the racketeering activities in which he had engaged. In Masters' view, he had been implicitly acquitted of murder and so could not be sentenced as if he had been convicted of that crime. We explained why the argument was flawed:
978 F.2d at 285-86. We have more than once acknowledged the "self-evident" unfairness of sentencing a defendant based on uncharged criminal acts. United States v. Ebbole, 917 F.2d 1495, 1496 (7th Cir.1990) (citing United States v. Johnson, 658 F.2d 1176, 1179 (7th Cir.1981)). Yet, as Masters reveals, we have also upheld the practice repeatedly in view of its longstanding acceptance by the Supreme Court. See 978 F.2d at 285-86; see also United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir.1991), cert. denied, ___ U.S. ___, 113 S.Ct. 174, 121 L.Ed.2d 120 (1992); Ebbole, 917 F.2d at 1496. Thus, the fact that Corbin was never charged with aggravated assault or convicted of that offense does not preclude a court from taking such conduct into account in fashioning an appropriate sentence within the statutory range for the possession conviction.
B. Reliance on Hearsay Testimony
No eyewitness to Corbin's conduct in Killibrew's apartment testified at the sentencing hearing. Instead, the government relied on Eason's transcribed statement and on the testimony of the police officers who had interviewed Eason and Killibrew. Corbin argues that without corroboration from non-hearsay sources, that evidence does not suffice to support the court's finding that he committed aggravated assault.
The Federal Rules of Evidence do not apply in sentencing proceedings, except with respect to matters of privilege. Fed. R.Evid. 1101(d)(3); United States v. Morales, 994 F.2d 386, 389 (1993); United States v. Jewel, 947 F.2d 224, 237 & n. 20 (7th Cir. 1991); see also U.S.S.G. § 6A1.3(a); 18 U.S.C. § 3661. We therefore have held that hearsay is permitted in the sentencing context, so long as (1) the evidence is reliable and (2) the defendant is afforded the opportunity to rebut the evidence. United States v. Campbell, 985 F.2d 341, 348 (7th Cir.1993); Jewel, 947 F.2d at 237; see U.S.S.G. § 6A1.3(a) (sentencing judge may consider any relevant information so long as it "has sufficient indicia of reliability to support its probable accuracy"). "The determination of whether hearsay is sufficiently reliable to warrant credence for sentencing purposes necessarily depends upon the particular circumstances of each case." United States v. Wise, 976 F.2d 393, 403 (8th Cir.1992) (en banc), cert. denied, ___ U.S. ___, 113 S.Ct. 1592, 123 L.Ed.2d 157 (1993).
The statements of Eason and Killibrew, as recounted by the investigating officers, were consistent with one another. Each recounted the same sequence of events: Corbin broke into Killibrew's apartment brandishing a gun, pressed the gun against Eason's face and demanded that she leave with him, scuffled with Killibrew, and pursued Eason as she attempted to flee. Further, as the government points out, the statements Eason and Killibrew made without the benefit of reflection and consultation when the police first arrived at the scene were consistent with what Eason said later in her discussions with the police.
Even if we were to accept Corbin's argument that some non-hearsay corroboration is required in order to render the hearsay admissible,
There is also no question that Corbin had the opportunity to rebut the government's hearsay evidence. The defense had access to Eason's statement several weeks in advance of the sentencing hearing and was notified more than a month before the hearing the government would not be calling Eason as a witness. The defense took advantage of the opportunity to cross-examine the government's witnesses and presented three witnesses of its own, although, like the government, the defense did not call any witnesses with first-hand knowledge of what had occurred.
The government's decision not to call any of the eyewitnesses to the critical events of the case might give one pause. Eason's reluctance to testify is understandable — she had been assaulted by Corbin more than once. But why the government did not call Killibrew, Davis, Pollard or Harrison is not so clear.
Nonetheless, the district judge found the government's hearsay evidence to be reliable, and she did not abuse her discretion in doing so. Nothing that Corbin presented to the district court or that he has argued on appeal calls the reliability of the government's evidence into question. Eason and Killibrew may not have had unblemished pasts, but it was well within the province of the district court to find their hearsay statements reliable in view of the totality of the evidence. See United States v. Musa, 946 F.2d 1297, 1306-07 (7th Cir.1991). Therefore, the district court did not err in relying on hearsay in finding that Corbin had committed an aggravated assault.
C. Evidentiary Standard
Corbin next argues that the government was required to prove beyond a reasonable doubt that he committed an aggravated assault. This argument plainly fails in light of well-established precedent.
A preponderance of the evidence is normally all the support necessary for a factual finding under the Guidelines. E.g., Masters, 978 F.2d at 287; United States v. Trujillo, 959 F.2d 1377, 1381-82 (7th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 277, 121 L.Ed.2d 204 (1992); United States v. Schuster, 948 F.2d 313, 315 (7th Cir.1991). See generally McMillan v. Pennsylvania, 477 U.S. 79, 84, 106 S.Ct. 2411, 2415, 91 L.Ed.2d 67 (1986). A higher standard might be called for only in the rare instance where a factual finding will result in a sentencing increase so great "that the sentencing hearing can fairly be characterized as `a tail which wags the dog of the substantive offense.'" Schuster, 948 F.2d at 315 (citations omitted); see also Trujillo, 959 F.2d at 1382; Masters, 978 F.2d at 287.
Although cross-referencing resulted in a significantly greater sentence for Corbin, the enhancement was not so serious as to require a burden of proof commensurate with trial. Here, the "other" conduct that the district court considered underlay the very offense to which Corbin pled guilty, as opposed to conduct that occurred on different or unrelated occasions. See McMillan, 477 U.S. at 92, 106 S.Ct. at 2419 ("Sentencing courts necessarily consider the circumstances of an offense in selecting the appropriate punishment, and we have consistently approved sentencing schemes that mandate consideration of facts related to the crime without suggesting that those facts must be proved beyond a reasonable doubt.") (citation omitted). Compare, e.g., Ebbole, 917 F.2d at 1495-96 (defendant pled guilty to distributing one gram of cocaine to a police officer, but was sentenced on the basis of additional sales over a three-month period totalling 1.7 kilograms). As we acknowledged earlier, Corbin's sentence may be identical to what he would have received had he been convicted of aggravated assault. Yet, this only means "that under certain circumstance[s] Congress and the [Sentencing]
Finally, although we have concluded that no more exacting a burden than a preponderance of the evidence was required, we note that the district judge found that Corbin had committed aggravated assault by "clear and convincing evidence, and perhaps even beyond that...." (Tr. at 192.) Therefore, even if this situation could be characterized as an instance of "the tail wagging the dog," Corbin enjoyed the benefit of an appropriately higher evidentiary standard. Granted, the district court did not render its finding beyond a reasonable doubt. But Corbin's invocation of this standard really is a reprise of his argument that he may not be sentenced with reference to the aggravated assault guideline unless he has been convicted of that offense, an argument we have already rejected. Even cases acknowledging that a higher burden of proof might sometimes be appropriate do not embrace a standard as demanding as proof beyond a reasonable doubt. See Trujillo, 959 F.2d at 1382; Kikumura, 918 F.2d at 1101-02.
D. Acceptance of Responsibility
Finally, Corbin challenges the district court's refusal to grant him a two-level reduction for acceptance of responsibility under Guidelines section 3E1.1. Pleading guilty to an offense does not necessarily entitle the defendant to such a reduction. United States v. Skinner, 986 F.2d 1091, 1100 (7th Cir.1993). A defendant accepts responsibility only if he "fesses up to his actual offense." Id. (quoting United States v. Escobar-Mejia, 915 F.2d 1152, 1153 (7th Cir.1990)). The propriety of a reduction under section 3E1.1 is thus a factual matter that the district judge is uniquely situated to resolve. United States v. White, 993 F.2d 147, 151 (7th Cir. 1993); United States v. Guadagno, 970 F.2d 214, 224 (7th Cir.1992); United States v. Franklin, 902 F.2d 501, 505 (7th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 274, 112 L.Ed.2d 229 (1990). See 18 U.S.C. § 3742(e), U.S.S.G. § 3E1.1, comment. (n. 5). We may reverse the district court's judgment on this question only if it is clearly erroneous. E.g., Guadagno, 970 F.2d at 224; United States v. Beal, 960 F.2d 629, 632 (7th Cir.), cert. denied, ___ U.S. ____, 113 S.Ct. 230, 121 L.Ed.2d 166 (1992).
Acknowledging that it was a "close call" (Tr. at 200), the district court concluded that although Corbin had pled guilty to the possession charge, he had not demonstrated genuine acceptance of responsibility:
(Id. at 200-01.) Corbin contends that the district court refused to grant him the two-level reduction under section 3E1.1 because he did not concede culpability for the aggravated assault. In Corbin's view, that rationale violates his fifth amendment right against self-incrimination, because it requires him to admit crimes for which he might still be prosecuted.
This argument is a nettlesome one that has divided the courts of appeals. A number of circuits have either held or suggested that the reduction for acceptance of responsibility may not be conditioned upon a defendant's willingness to acknowledge criminal conduct beyond the particular offense to which he has pled guilty. United States v. Frierson, 945 F.2d 650 (3d Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1515 (1992); United States v. Piper, 918 F.2d 839, 840-41 (9th Cir.1990) (per curiam); United States v. Oliveras, 905 F.2d 623 (2d Cir.1990) (per curiam); United States v. Perez-Franco, 873 F.2d 455 (1st Cir.1989); see also United States v. Guarin, 898 F.2d 1120, 1122 (6th Cir.1990). These courts reason that when a defendant is denied the reduction because he will not to admit to other criminal acts for which he still might be prosecuted, he is effectively penalized for the exercise of his fifth amendment right against self-incrimination. See Frierson, 945 F.2d at 656-60; Oliveras, 905 F.2d at 626-28; Perez-Franco, 873 F.2d at 461-63;
We recently expressed agreement with this second line of authority. United States v. Cojab, 978 F.2d 341, 343 (7th Cir.1992). We observed:
978 F.2d at 343-44. Thus, assuming that Corbin was forced to exercise his privilege against self-incrimination at the expense of a two-level reduction for acceptance of responsibility, Cojab suggests that this is not a constitutionally unacceptable cost for him to bear.
We need not resolve the question here, however, for even if we were to agree as a constitutional matter that a section 3E1.1 reduction may not be conditioned upon a defendant's willingness to acknowledge criminal conduct beyond the offense to which he has pled guilty, Corbin would not be entitled to relief. As the Third Circuit recognized in Frierson, the privilege against self-incrimination is not self-executing, but must be affirmatively invoked. 945 F.2d at 660 (citing Minnesota v. Murphy, 465 U.S. 420, 429, 104 S.Ct. 1136, 1143, 79 L.Ed.2d 409 (1984)). Corbin never did so. True, the failure to invoke the privilege may be excused if the defendant was forced to choose between incriminating himself and suffering a penalty for exercising his privilege not to do so. See Murphy, 465 U.S. at 434-35, 104 S.Ct. at 1146. For example, in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), the Supreme Court found that the defendant police officers did not waive the privilege when they answered the questions put to them because they were threatened with discharge from their jobs if they invoked the privilege and refused to answer. However, for this coercion exception to apply, the threat of a penalty for remaining silent must have been explicit. The fact that a defendant is expected to give candid answers in a particular situation and might suffer adverse consequences if he does not (e.g., in response to questions from his probation officer) is not enough to excuse him from affirmatively invoking his fifth amendment privilege if he does not wish to incriminate himself. See Murphy, 465 U.S. at 435, 104 S.Ct. at 1146; Frierson, 945 F.2d at 661.
Frierson is particularly pertinent here. In that case, the defendant pled guilty to robbing a bank by intimidation. Frierson admitted to the probation officer that he had handed the bank teller a note that said "Give me your money, I have a gun," but he refused to acknowledge that he actually had a gun in his possession at the time. Indeed, Frierson specifically denied this allegation in a preindictment interview with the FBI and again during a presentence interview with his probation officer. After an evidentiary hearing at which Frierson declined to testify, the district court concluded that Frierson had possessed a gun and denied him the two-level reduction under section 3E1.1 because he had refused to admit it. On appeal, the Third Circuit agreed with Frierson that a defendant could not be required to admit acts
Citing Frierson, we recently upheld the denial of a section 3E1.1 reduction where the defendant had voluntarily made both oral and written representations regarding his other conduct that the district court found to be false. White, 993 F.2d at 151.
Id. (citations and footnote omitted).
Just as in Frierson and White, the district court's decision to deny Corbin credit for acceptance of responsibility was based not on his silence at the sentencing hearing (or at any earlier juncture), but rather on the exculpatory statements that he had voluntarily made to the court and to his probation officer. Judge Barker's remarks at sentencing, which we have recounted above, make this clear. She in no way suggested that Corbin's decision not to testify at the hearing influenced her assessment of his entitlement to a reduction under section 3E1.1. Instead, she focused on the letter his counsel had sent to the probation officer and his own remarks at the time of his plea and found that these statements recited an implausible version of events calculated to exonerate him from responsibility for what had transpired. (Tr. at 200-01.)
Although the letter is not in the record, its contents were summarized in the presentence report:
(Presentence Report at 9, ¶¶ 9-10.)
Corbin himself interjected similar remarks during the plea hearing. At that time, the government proffered only the particular facts establishing a violation of the felon-in-possession statute. After recounting Corbin's prior convictions and his arrest on June 8, ATF Agent Gilbert testified as follows:
(Tr. at 17.) Gilbert said nothing else about the circumstances that had culminated in Corbin's arrest.
(Tr. at 20.) After the district court repeated the substance of Gilbert's testimony, Corbin finally conceded that the proffer was accurate. (Id. at 20-21.)
Nothing in the record suggests that Corbin was compelled to make these exculpatory statements. In particular, there is no evidence that either the government or the district court told Corbin that he would be denied credit for acceptance of responsibility if he chose not to speak about the circumstances surrounding his possession of the gun. The government did object to the probation officer's recommendation that Corbin be given the reduction, but it did so on the basis of the exculpatory version of events Corbin and his counsel already had given to the probation officer. Similarly, in reiterating its opposition to the reduction at the close of the evidentiary hearing, the government referred solely to the affirmative disclaimers that Corbin had volunteered, not to anything that he had declined to speak about at the hearing:
(Tr. at 181-82 (emphasis supplied).) Finally, as we have noted, when Judge Barker asked Corbin to comment on the government's proffer, she did not ask Corbin to disclose where he had gotten the revolver and what he had done with it. To the contrary, Corbin did so on his own initiative and stopped only when Judge Barker admonished him that this subject was beyond the scope of Gilbert's testimony. (Tr. at 20-21.)
Under these circumstances, we discern no intrusion upon Corbin's privilege not to incriminate himself. Corbin did not refuse to discuss the circumstances surrounding his possession of the gun nor did he claim a fifth amendment right to remain silent. Instead, he willingly addressed this subject on at least two occasions without expressing any concern about self-incrimination. Nor was he threatened with any penalty that might excuse his failure to invoke the privilege.
(Tr. at 206-07.) Corbin's belated acknowledgement that he and the others had been fighting, that he had pushed the gun against Eason's face, and that he and Killibrew ended up in a struggle lends considerable confirmation to the government's version of events and exposes the self-serving and inaccurate character of Corbin's earlier statements. At the same time, Corbin's evident reluctance to concede the full violence of the encounter demonstrates his continued unwillingness to come to terms with what he really had done.
Having found that Corbin had committed aggravated assault while in possession of the revolver, the district court correctly calculated Corbin's sentence using the guideline governing aggravated assault. The evidence, although largely hearsay, was more than sufficient to support this finding by a preponderance; proof beyond a reasonable doubt was not required. Furthermore, given the inaccurate and exculpatory nature of Corbin's voluntary statements regarding the offense, the district court did not err in denying him credit for acceptance of responsibility. We therefore affirm the judgment of the district court.
We have noted this matter to emphasize the importance of probation officers, prosecutors, defense counsel, and district courts alike making explicit which version of the Sentencing Guidelines they have used in making their calculations. Doing so ensures that we all begin our analysis from the same starting point.
Notably, Cammisano does not hold that non-hearsay corroboration is required in all cases. Rather, the court simply concluded that given multiple levels of hearsay and unidentified declarants, corroboration among the hearsay sources themselves was not adequate to prove the evidence reliable. 917 F.2d at 1062. Here, in contrast, the declarants were all identified, Corbin's counsel had the opportunity to cross-examine the officers about the declarants' statements, and the testimony regarding these statements did not represent the same degree of hearsay as in Cammisano. Cf. United States v. Radix Laboratories, Inc., 963 F.2d 1034, 1040 (7th Cir. 1992) (rejecting multiple-level hearsay objection to sentencing testimony of government official who had described affidavits of defendants' former employees, where defense counsel had opportunity to cross-examine the official and to point out weaknesses in the reliability of the affidavits). Moreover, as we observe below, the first-hand observations of the police officers who arrested Corbin corroborated the hearsay in significant respects.
U.S.S.G. § 3E1.1 (Nov.1992) comment. (n. 1). As we noted in White, the amended commentary appears calculated to address the type of fifth amendment concerns Corbin has raised here. 993 F.2d at 151; see also United States v. Hicks, 978 F.2d 722, 726 (D.C.Cir.1992). However, it also articulates the same distinction we have drawn between a defendant's silence and his voluntary misrepresentations as to his other conduct. Thus, even if we were to apply the new commentary retroactively (see id. at 726-27), the result would be no different.