United States v. Gentile
In United States v. Gentile, —- F.4th —-, No. 22-50837 (5th Cir. Feb. 21, 2024), the Fifth Circuit found that the district court did not plainly err by what the defendant described as “threatening” to deny him acceptance of responsibility unless he withdrew certain objections to his Presentence Investigation Report (“PSR”).
Gentile pled guilty to conspiring to possess with intent to distribute at least 500 grams of methamphetamine, and he admitted to a factual basis saying that his relevant conduct involved over 3.5 kilograms of methamphetamine. Later, Gentile admitted to the probation officer writing his PSR that he had “conspired to obtain a substantial amount of methamphetamine” for about “four to five months.”
Later, however, Gentile objected to the PSR’s conclusion that he was responsible for trafficking 3.5 kilograms of methamphetamine (3.01 kilograms of actual methamphetamine) and involved in at least five drug transactions. He argued, instead, that he should only be held responsible for 7 grams of methamphetamine. In response, the PSR writer noted that the court might want to allow Gentile to withdraw his plea because he appeared to be denying the elements of his offense, or the court could deny Gentile credit for acceptance of responsibility under the Sentencing Guidelines.
At Gentile’s sentencing, the court and the parties discussed how to handle that objection. Ultimately, the court made four statements that Gentile challenged on appeal. Each of these was directed to Gentile’s attorney:
“If you [require the government to put on evidence that Gentile was involved in these transactions], then I’m going to grant the objection to his acceptance of responsibility because he’s not accepting responsibility.”
“He’s either going to accept responsibility for the entire amount, in which case he gets the three points [for accepting responsibility], or you can force the government to do what I think you’re going to force them to do, and that’s fine.”
“But if you are going to force the government to prove his involvement in what I’m going to call the entire charge that he’s pleading guilty to, then he’s not accepting responsibility for it.”
“So if he’s willing to move forward—if he wants to move forward and have you force the government to put the witness on and prove this, he does it at the risk of losing the three points.”
Gentile then had an opportunity to confer with his attorney, after which he decided to withdraw his objection to the drug amount. The district court went on to sentence him to 360 months in prison. On appeal, he argued that he was “judicially coerced into withdrawing his objections to the PSR’s drug amount calculation.” Because Gentile had not raised that argument in the district court, the Fifth Circuit reviewed it for plain error.
On plain error, however, Gentile’s argument failed because he could not show that the error could have affected his sentence. As the Fifth Circuit put it, “Gentile has failed to allege any remotely plausible effect on his sentence.”
NB: Gentile’s appointed appellate counsel had initially filed an Anders brief, noting that he found no meritorious issues to raise. The Fifth Circuit rejected that and ordered briefing on the merits of this issue. In that second round of briefing, Gentile’s appellate counsel mistakenly argued that had Gentile “received his three points, … his Guidelines range would have been 262–327 months, instead of 360 to life.” But Gentile had received those three points at sentencing, because he elected to withdraw his objections.
In a final footnote, the Fifth Circuit made this comment: “Attorneys have an enduring duty to analyze non-frivolous issues even when their Anders motions have been denied. Here, simply reading the sentencing hearing transcript should have informed Gentile’s attorney that the relevant offense level was 37–40, rather than 34–37; thus, taking the opportunity to file a reply brief addressing the briefing error would have been proper.”