The Forgotten Constitutional Right to Present a Defense and Its Impact on the Acceptance of Responsibility-Entrapment Debate

This Note argues that Section 3El.1 of the Federal Sentencing Guidelines must be interpreted to allow defendants who claim entrapment at trial to remain eligible for the acceptance-of-responsibility adjustment. To interpret Section 3El.1 in any other way would run afoul of defendants’ constitutional right to present a defense. Part I argues that the entrapment defense does not put factual guilt at issue; instead the entrapment defense challenges whether the statute should apply to the defendant’s conduct. Part II contends that the legislative intent in creating the sentencing guidelines in general and the acceptance-of-responsibility adjustment in particular are furthered by requiring sentencing judges to make individualized assessments about the extent to which defendants have accepted responsibility. Part III argues that the use of the entrapment defense as an automatic bar to the receipt of the acceptance-of responsibility adjustment is a penalty for the exercise of the defendant’s constitutional right to present the entrapment defense. This Note concludes that because the assertion of entrapment and acceptance of responsibility are not inherently inconsistent, the use of a per se rule barring the adjustment is a violation of the defendant’s constitutional right to present a defense.