United States of America v. JAIME FOURNIER a/k/a Bori JAIME FOURNIER

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-4376
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UNITED STATES OF AMERICA
v.
JAIME FOURNIER
a/k/a Bori
JAIME FOURNIER,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No. 2-10-cr-00676-009)
District Judge: Hon. Mitchell S. Goldberg
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 3, 2016
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Before: McKEE, Chief Judge, SMITH, and HARDIMAN, Circuit Judges.
(Opinion filed: April 25, 2016)
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OPINION*
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* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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McKEE, Chief Judge
Jaime Fournier appeals the District Court’s judgment of sentence denying a
reduction of the offense level for acceptance of responsibility. For the reasons that
follow, we will affirm.
I.
Because we write for the parties who are already familiar with the facts and
procedural history, we set forth only the background necessary to our conclusion.
On July 6, 2011, Fournier was indicted by a grand jury in the Eastern District of
Pennsylvania, charging him with one count of conspiracy to distribute 100 grams or more
of heroin, in violation of 21 U.S.C. § 846 and one count of possession of 100 grams or
more of heroin with intent to distribute, and aiding and abetting, in violation of 21 U.S.C.
§ 841(a) and § (b)(1)(B), and 18 U.S.C. § 2. On April 9, 2014, Fournier entered a plea of
nolo contendere to these charges. The dispute here arises from the fact that Fournier
claimed he did not recall committing the crimes charged, but acknowledged that the
government did not fabricate the evidence against him.
At the sentencing hearing, the District Court overruled Fournier’s objection to the
denial of credit for acceptance of responsibility based on two factors. First, the District
Court considered a number of psychological evaluations conducted by experts retained
by the court, the government, and Fournier, which found that his ability to recall the
charged conduct was not impaired, nor did Fournier exhibit any organic brain

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dysfunction. Second, the District Court noted that while it appeared that Fournier did
exhibit, to a certain extent, remorse and acceptance of responsibility, neither expression
was overwhelming. The District Court ultimately imposed a sentence of seventy-eight
months’ imprisonment to be followed by four years of supervised release, and a special
assessment of $200. Fournier appeals.
II.
The District Court’s denial of the two-level reduction is entitled to “great
deference” because the “sentencing judge is in a unique position to evaluate a defendant’s
acceptance of responsibility.”1 We review factual findings “underlying the denial of a
Sentencing Guidelines reduction for acceptance of responsibility for clear error, and
reverse only if we are left with a definite and firm conviction that a mistake has been
committed.”2
Section 3E1.1(a) of the Sentencing Guidelines provides for a two-level decrease in
the offense level when a “defendant clearly demonstrates acceptance of responsibility for
his offense.”3 Fournier has the burden of establishing that he is entitled to this two-level
reduction for acceptance of responsibility by the preponderance of the evidence.4 We
also recognize that a plea of nolo contendere is not an admission of guilt,5 and although
1 United States v. King, 604 F.3d 125, 141 (3d Cir. 2010) (quoting U.S. SENTENCING
GUIDELINES MANUAL § 3E1.1 cmt. 5 (U.S. SENTENCING COMM’N 2004)).
2 United States v. Lessner, 498 F.3d 185, 199 (3d Cir. 2007) (citing United States v.
Boone, 279 F.3d 163, 193 (3d Cir. 2002)); United States v. Felton, 55 F.3d 861, 864 (3d
Cir. 1995).
3 U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(a) (U.S. SENTENCING COMM’N 2004).
4 Boone, 279 F.3d at 193.
5 See United States v. Adedoyin, 369 F.3d 337, 344 (3d Cir. 2004).

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such a plea does not preclude a District Court from granting a reduction for acceptance of
responsibility,6 the burden remains on the defendant to demonstrate acceptance of
responsibility and express remorse.7
Fournier contends that the District Court erred when it found that he was not
entitled to a sentencing reduction for accepting responsibility even though he entered a
nolo contendere plea in a timely fashion and expressed remorse. Fournier cites United
States v. Harris to support his claim that a nolo contendere plea was appropriate given his
mental capacity at the time of the charged conduct.8 According to Fournier, his plea, in
conjunction with statements made to the District Court, qualified him for a sentence
reduction. Fournier’s reliance on Harris is misplaced, and a more thorough review of the
record indicates that the District Court did not clearly err in finding that Fournier had not
expressed sufficient remorse for his actions to justify a reduction in his sentence.
Fournier claims that he was unable to recall the incidents surrounding the charge
because of a history of high dosage drug abuse and head trauma. We have acknowledged
that a defendant who truly could not remember the events surrounding a charged crime
should not be required to perjure himself in order to have a court conclude that s/he has
expressed remorse and accepted responsibility.9 However, that does not appear to be the
circumstance here. A number of psychological evaluations conducted by experts retained
by the court, the government, and the defendant himself, found that Fournier’s ability to
6 United States v. Harris, 751 F.3d 123, 127 (3d Cir. 2014).
7 Boone, 279 F.3d at 193.
8 Harris, 751 F.3d at 127.
9 Id.

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recall the charged conduct was not impaired. Fournier’s claim of a faulty memory is
therefore dubious at best.
Given the absence of record support for his claim of compromised memory,
Fournier simply did not convince the District Court of his sincerity. Although Fournier
appeared to accept responsibility and apologized for his conduct, the District Court was
simply unpersuaded of his sincerity. Indeed, when Fournier was asked what charge he
was expressing remorse for, he testified: “distributing marijuana.” Given this record, we
cannot conclude that the District Court committed plain error in remaining skeptical of
Fournier’s sincerity. In reaching this conclusion, however, we reiterate that a defendant
who enters a plea of nolo contendere can nevertheless demonstrate sufficient remorse to
fully accept responsibility for his/her criminal conduct.10 We simply hold that the
District Court did not commit plain error in concluding that this is not such a case.
III.
For the reasons set forth above, we conclude that the District Court did not err in
refusing to reduce Fournier’s guidelines offense level based on his acceptance of
responsibility, and will therefore affirm.
10 Id.

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