Can a court count a defendant's constitutionally-protected-conduct against the defendant when determining whether the defendant qualifies for a 2-point reduction under U.S.S.G. § 3E1.1 for acceptance-of-responsibility

QUESTION PRESENTED Under the U.S. Sentencing Guidelines, a defendant who accepts responsibility for an offense receives a two-point reduction on the offense level. U.S.S.G. § 3E1.1. But “[a] difficult [constitutional] problem...exist[s] in a case where a to accept responsibility and the district court purports to weigh against this acceptance the defendant’s earlier, constitutionally protected conduct, such as her exercise of her right to remain silent or to put the government to its proof at trial.” United States v. De Jongh, 937 F.2d 1, 5 n.8 (1st Cir. 1991) (acknowledging but not resolving the problem). See also Kinder v. United States, 504 U.S. 946, 951 (1992) (White, J., dissenting from denial of certiorari) (noting that the interplay between the constitutional right to remain silent and U.S.S.G. § 3E1.1 is “a recurring issue of constitutional dimension, where the varying conclusions of the Courts of Appeals determines the length of sentence actually imposed”). The U.S.S.G. § 3E1.1 calculus has created a profound split among the federal courts of appeal. The Ninth and Eleventh Circuits prohibit weighing the invocation of Fifth and Sixth Amendment rights when considering entitlement to credit. On the other hand, the D.C., Third, Fourth, Seventh, and Tenth Circuits count such constitutionally protected conduct against the defendant—and, in some 1 instances, hold that it categorically precludes credit for acceptance of responsibility. This Court previously reserved consideration of the interplay between U.S.S.G. § 3E1.1 and constitutionally protected conduct. Mitchell v. United States, 526 U.S. 314, 330 (1999) (“Whether silence bears upon the determination of... acceptance of responsibility for purposes of the downward adjustment provided in § 3E1.1 of the United States Sentencing Guidelines... is not before us, and we express no view on it.”). The lower courts are now ready for the Court to resolve their disagreement. The question in this Petition is, therefore, the following: 1. Can a court count a defendant’s constitutionally protected conduct against the defendant when determining whether the defendant qualifies for a 2-point reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility? il