Document Type


Publication Date



The United States Sentencing Guidelines (hereinafter Guidelines) allow federal district courts to reduce a defendant's sentence if the defendant "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct .... " In United States v. Perez-Franco, the United States Court of Appeals for the First Circuit held that the above Guidelines section on acceptance of responsibility did not require a defendant to accept responsibility for charges that were to be dismissed as part of a plea agreement. The Perez-Franco decision is an affront to the fundamental principle that a defendant ought to take personal responsibility for the crime that defendant actually committed if he or she desires mercy from the sentencing court. It may also encourage prosecutors to usurp the judicial function of determining which defendants deserve a sentence reduction pursuant to the acceptance-of-responsibility section.

The Perez-Franco court offered two primary grounds for its decision. First, the court interpreted the express language of the Guidelines pertaining to acceptance of responsibility. Second, the court observed that certain statements by the defendant about his or her conduct, beyond facts contained in the offense of conviction, might be used in a subsequent criminal prosecution and would violate the defendant's fifth amendment privilege against self-incrimination. This violation would occur where the defendant was required to make inculpatory statements about conduct beyond that in the offense of conviction and these statements were subsequently used against the defendant in a criminal trial.

This article will criticize the first ground in the Perez-Franco decision by providing an alternative interpretation of the language in the Guidelines' acceptance-of-responsibility section. In addition, this article will challenge the second ground in the decision by demonstrating that if a sentencing court requires a defendant to make self-incriminating statements to receive a sentence reduction, then those statements are involuntary under the fifth amendment and cannot be used in a subsequent criminal trial.

Judges should have the authority to determine whether a defendant is repentant for the real offense he or she committed as opposed to a lesser crime negotiated in a plea bargain. Furthermore, judges should be able to ask a defendant about the real-offense behavior to curb potential prosecutorial abuses of discretion.