The opinion of the court was delivered by: WILLIAMS
ANN CLAIRE WILLIAMS, UNITED STATES DISTRICT JUDGE.
Defendant James Guadagno was indicted on charges of arson, mail fraud and obstruction of justice in connection with a fire that destroyed defendant Guadagno's liquor store in April, 1988. On September 20, 1990, a jury found defendant Guadagno guilty of arson and mail fraud and not guilty of obstruction of justice. The court referred the case to the probation department for a presentence investigation. Both the government and the defendant filed objections to the probation department's presentence report and on March 29, 1991, the court heard oral argument regarding these objections. The court will now rule on the parties' objections.
Acceptance of Responsibility
Under Guidelines § 3E1.1(a), an offense level should be reduced by two points "if the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." In the case at bar, the probation officer found that Mr. Guadagno had expressed "affirmative acceptance of responsibility for his conduct" and accordingly recommended reducing his offense level by two points. The government objects to a two-point reduction in defendant's offense level because the government contends that defendant has not accepted responsibility for all his acts. Furthermore, the government argues that Mr. Guadagno's acceptance of responsibility occurred too late to warrant an offense level reduction. The court agrees.
Defendant drafted two written statements regarding his version of the incident. Neither of these statements conclusively shows that defendant accepts full responsibility for his actions. In his first written statement, defendant apologizes to the owners of the property for the "needless destruction," indicating that he is taking responsibility for setting the fire. However, defendant makes no reference to his involvement in any mail fraud, even though the jury found him guilty on all three counts of mail fraud. Moreover, in his first statement defendant refers to the fire as a "needless mistake that happened to him," rather than affirmatively admitting that he caused the fire. In his second statement, defendant devotes the majority of his letter to attempting to justify his actions by detailing how badly he was treated by the Spalla family. He states that the Spallas are just as guilty as he is and that he was pushed into the situation. In the last sentence of his second statement defendant does say that he takes "total responsibility" for the fire. However, it seems this statement is belied by the rest of his letter.
Furthermore, even if defendant were more unequivocal about accepting responsibility in his letters, the court would still be reluctant to find the letters sufficient to warrant a two-point reduction in defendant's offense level because they were written so late in the proceedings. Defendant's first statement was written after he had been indicted, tried and convicted of arson and mail fraud. Defendant's second statement was written after the government had filed its objection to the probation department's suggested offense level reduction for acceptance of responsibility. Both the case law and the Guidelines' Application Notes suggest that acceptance of responsibility at this point is too late to warrant an offense level reduction.
In United States v. Franklin, 902 F.2d 501, 505-06 (7th Cir. 1990), the Seventh Circuit upheld the district court's decision that defendant was not entitled to a two-point reduction in his offense level for acceptance of responsibility because his acceptance was untimely. In Franklin, the defendant did not accept responsibility until after "he was charged, pleaded guilty, and the government accumulated proof against him." Id. The Seventh Circuit stated that "we cannot say that the district judge had no foundation on which to conclude that [defendant's] guilty plea and truthful admissions arose more from [defendant's] practical concern to lessen his punishment than from any true remorse for his crimes." Id. Similarly, the court believes that defendant Guadagno's motivation for writing the letters, especially the letter written after the government submitted its objection to the presentence report, stemmed, at least in part, from a "practical concern to lessen his punishment" rather than from pure remorse.
The Guidelines' Application Notes also support a finding that defendant Guadagno's attempt to accept responsibility comes too late. Note 1(g) to § 3E1.1 provides that "in determining whether a defendant qualifies for [a reduction for acceptance of responsibility], appropriate considerations include . . . (g) the timeliness of the defendant's conduct in manifesting the acceptance of responsibility." Note 2 goes on to state that:
this adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.
The government argues that because defendant went to trial on issues relating to factual guilt and because there are no pretrial statements showing defendant accepted responsibility, defendant should not receive a two-point reduction.
Defendant responds that because Application Note 2 did not go into effect until November 1, 1990, after defendant committed the offenses, the use of this Application Note against defendant Guadagno would constitute a violation of the ex post facto clause of the Constitution. The court disagrees. Revised Application Note 2 does not substantively change the operation of § 3E1.1, but instead merely clarifies the provision. See United States Sentencing Commission Guidelines Manual, Appendix C, No. 351 (provides that amendment to commentary to acceptance guideline clarifies the operation of this guideline). See also, United States v. Aguilera-Zapata, 901 F.2d 1209, 1213 (5th Cir. 1990) (because amendment to commentary was intended to clarify guideline's application and was not meant to substantively change the commentary or the guideline the court can consider amendment, even though it was not in effect at the time of the commission of the offense).
Revised Application Note 2 does not preclude a defendant who exercises his constitutional right to go to trial from getting a two-point reduction for acceptance of responsibility. It merely provides that a defendant who goes to trial normally will have difficulty proving acceptance of responsibility, unless the defendant went to trial to challenge the constitutionality of a statute or to challenge whether the statute applied to his conduct. The original Application Note 2, which was in effect at the time defendant committed the offenses, also stated that defendants who go to trial on issues not relating to factual guilt are those most likely to be able to show acceptance of responsibility. While the original Application Note 2 stated that "conviction by trial does not preclude a defendant from consideration under this section," it still required that defendant be able to show "sincere contrition." Given the lack of clarity of defendant's letters and the tardiness of his decision to try to show acceptance of ...