Tenth Circuit Affirms Broad Sentencing-Court Discretion on Acceptance-of-Responsibility and Extreme-Conduct Departures – United States v. Born

Introduction

On 11 July 2025 the United States Court of Appeals for the Tenth Circuit decided United States v. Born, No. 24-7011, an appeal that raised two recurring, but often misunderstood, Guideline questions:

When, if ever, must a district court award the two-level deduction for “acceptance of responsibility” under U.S.S.G. § 3E1.1(a) to a defendant who proceeds to trial yet is convicted only of a lesser-included offence he effectively conceded?
What conduct justifies an upward departure for “extreme conduct” under U.S.S.G. § 5K2.8, particularly when the base offence (here, voluntary manslaughter) already presupposes violence and loss of self-control?

Defendant–appellant Kalup Allen Born sought vacatur of his 121-month sentence for voluntary manslaughter following a jail-house killing. He argued that the district court (E.D. Okla.) clearly erred in refusing him a § 3E1.1 reduction and abused its discretion in imposing a one-level upward departure under § 5K2.8. The Tenth Circuit unanimously affirmed, delivering a detailed explanation of the deferential standards governing both issues.

Summary of the Judgment

The panel (Bacharach, Baldock & Carson, J.J.) held:

Acceptance of responsibility (AOR): The district court did not commit clear error in denying the two-level reduction. Although Born admitted the physical acts and ultimately urged a manslaughter conviction, the court reasonably found he failed to “clearly demonstrate” acceptance because he (a) continued violent criminal conduct after the homicide and (b) put the Government to its burden at trial by contesting malice and intent.
Extreme-conduct departure: A one-level upward departure under § 5K2.8 was within the court’s discretion. The video evidence showed “gratuitous” and “prolonged” brutality—27 head-stomps, taunting, and re-enacted boasts—that removed the case from the “heartland” of ordinary voluntary manslaughter.

Consequently, Born’s 121-month sentence (low end of the adjusted range) stands.

Analysis

A. Precedents Cited

The panel relied heavily on three prior Tenth Circuit authorities:

United States v. Smith, 100 F.4th 1244 (2024) – reaffirmed the “great deference” owed to sentencing courts on AOR determinations; reversal only when finding is “without foundation.”
United States v. Gauvin, 173 F.3d 798 (10th Cir. 1999) – example where a defendant who went to trial did receive the AOR discount because he admitted all conduct and merely litigated intoxication.
United States v. Collins, 511 F.3d 1276 (10th Cir. 2008) – converse example where the discount was denied; highlighted that differing outcomes can coexist because appellate review is for clear error, not de novo balancing.

On upward departures the panel referenced:

United States v. Checora, 175 F.3d 782 (10th Cir. 1999)
United States v. Robertson, 568 F.3d 1203 (10th Cir. 2009)
United States v. Proffit, 304 F.3d 1001 (10th Cir. 2002)

These cases collectively articulate a four-part test for reviewing departures and emphasise deference to a district court’s “heartland” assessment.

B. Legal Reasoning

1. Acceptance of Responsibility – § 3E1.1

The Guideline allows a two-level deduction when a defendant “clearly demonstrates acceptance of responsibility for his offence.” Commentary Note 2 warns that the adjustment is “not intended” for defendants who put the Government to its proof and then, post-conviction, profess remorse.

Key features of the panel’s reasoning:

Fact-intensive inquiry: The district court focused on Born’s post-offence behaviour: while awaiting trial he stabbed another inmate with a metal shank (new convictions for assault with a dangerous weapon and contraband possession). Absence of rehabilitation is a Note 1 consideration.
Lesser-included conviction not dispositive: Born urged that, because he conceded voluntary manslaughter elements, he was akin to the defendant in Gauvin. The panel disagreed, stressing that the deferential standard allows different district judges to reach different conclusions on similar facts; no mechanical rule requires the reduction whenever a lesser offence is admitted.
No legal misfocus: Born alleged the court erroneously considered his contest to the greater first-degree-murder charge rather than the “offence of conviction.” The panel found the record, at worst, ambiguous; appellate courts do not presume error from ambiguity (Nacchio principle).

2. Extreme Conduct – § 5K2.8

Section 5K2.8 permits an upward departure for conduct “unusually heinous, cruel, brutal, or degrading to the victim,” exemplified by torture, gratuitous injury, or prolonged pain/humiliation.

The panel upheld the one-level increase because the district court:

Made specific findings: 27 head-stomps, repeated punching, continuation after victim ceased resistance, taunting, post-incident re-enactment.
Explained why these facts departed from the “ordinary heat-of-passion” scenario already baked into voluntary manslaughter Guidelines.
Tied the brutality to the statutory text (“gratuitous infliction of injury,” “prolonging of pain”).

Born’s counter-argument—that the victim’s own vulgar behaviour mitigated humiliation—was insufficient; § 5K2.8 focuses on the defendant’s cruelty, not the victim’s dignity level beforehand.

C. Likely Impact of the Decision

Though the order is “non-precedential” under 10th Cir. R. 32.1, it carries persuasive weight and clarifies two practical points of federal sentencing:

Continued criminality outweighs limited trial concessions. Defendants who admit a lesser offence but rack up fresh misconduct should not expect § 3E1.1 relief. Post-offence behaviour looms large.
Brutality matters even within violent offences. Voluntary manslaughter usually involves an impulsive killing, yet unusually sadistic details—documented by video—justify modest upward departures.
Deferential review survives inconsistency. The juxtaposition of Gauvin, Collins, and Born underscores that appellate courts will rarely second-guess district-court discretion on AOR or § 5K2.8 so long as a “foundation” exists.
Sentencing advocacy must address rehabilitation. Defense counsel seeking AOR reductions should marshal concrete evidence of counselling, programme participation, or other rehabilitative steps; mere courtroom remorse is insufficient.

Complex Concepts Simplified

Acceptance of Responsibility (§ 3E1.1): A potential two-point discount on the offence-level score. Think of it as a reward for genuine contrition plus post-crime reform. Simply saying “I’m sorry” or conceding some elements at trial seldom suffices.
Upward Departure vs. Variance: A “departure” moves the Guideline range itself (under older pre-Booker terminology) based on specifically authorised factors, whereas a “variance” is a step outside the range under 18 U.S.C. § 3553(a). The Tenth Circuit still applies the four-factor Robertson test to evaluate departure legitimacy.
Heartland: Sentencing shorthand for the typical case the Guideline was designed to cover. Conduct that is materially more serious than the heartland can justify a departure.
Clear Error vs. Abuse of Discretion: “Clear error” (for factual findings) means the appellate court is firmly convinced a mistake occurred. “Abuse of discretion” (for the ultimate sentencing decision) means the lower court’s result is arbitrary or manifestly unreasonable.

Conclusion

United States v. Born fortifies two long-standing, but sometimes diluted, sentencing principles. First, the § 3E1.1 credit is discretionary and holistic: continued violence, lack of rehabilitation, or trial strategies that force the Government to prove intent can defeat the reduction even when a defendant concedes elements of a lesser-included offence. Second, the label “voluntary manslaughter” does not immunise a defendant from an extreme-conduct departure when the killing features gratuitous brutality. Practitioners should treat this decision as an instructive roadmap—both for preserving the reduction (by documenting real reform) and for challenging or defending § 5K2.8 departures (by focusing on concrete comparisons to the Guidelines “heartland”).