United States v. Alan Reed Wivell, 893 F.2d 156 (8th Cir. 1990). · Go Syfert
United States v. Alan Reed Wivell, 893 F.2d 156 (8th Cir. 1990). Cases Citing This Book View Copy Cite
192 citation events (138 in the last 25 years) across 26 distinct courts.
Strongest positive: United States v. Calvin Matchett (ca11, 2016-09-13)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
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Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) United States v. Calvin Matchett (10×) also: Cited as authority (rule), Cited "see"
11th Cir. · 2016 · quote attribution · 4 verbatim quotes · confidence high
the sentencing guidelines do not define illegal conduct: they are directives to judges for their guidance in sentencing convicted criminals, not to citizens at large.
examined Cited as authority (verbatim quote) United States v. Calvin Matchett (3×) also: Cited as authority (rule), Cited "see, e.g."
11th Cir. · 2015 · quote attribution · 1 verbatim quote · confidence high
he limitations the guidelines place on a judge's discretion cannot violate a defendant's right to due process by reason of being vague.
examined Cited as authority (verbatim quote) United States v. Calvin Matchett (3×) also: Cited as authority (rule), Cited "see, e.g."
11th Cir. · 2015 · quote attribution · 1 verbatim quote · confidence high
he limitations the guidelines place on a judge's discretion cannot violate a defendant's right to due process by reason of being vague.
examined Cited as authority (verbatim quote) United States v. Calvin Matchett (3×) also: Cited as authority (rule), Cited "see, e.g."
11th Cir. · 2015 · quote attribution · 1 verbatim quote · confidence high
he limitations the guidelines place on a judge's discretion cannot violate a defendant's right to due process by reason of being vague.
examined Cited as authority (verbatim quote) United States v. Calvin Matchett (3×) also: Cited as authority (rule), Cited "see, e.g."
11th Cir. · 2015 · quote attribution · 1 verbatim quote · confidence high
he limitations the guidelines place on a judge's discretion cannot violate a defendant's right to due process by reason of being vague.
discussed Cited as authority (rule) In re Jawan S.
Ill. App. Ct. · 2019 · confidence medium
See Beckles v. United States, 580 U.S. ___ , 137 S. Ct. 886, 894-95 (2017) (federal sentencing guidelines are not subject to vagueness challenge, as they “do not regulate the public by prohibiting any conduct or by establishing minimum and maximum penalties for [any] crime” but, rather, simply provide guidelines for exercise of sentencing court’s discretion (internal quotation marks omitted)); United States v. Wivell, 893 F.2d 156, 159-60 (1990) (federal sentencing guidelines “are simply not susceptible to a vagueness challenge” because they “do not define illegal conduct: they are…
discussed Cited as authority (rule) United States v. Tony Hurlburt (2×)
7th Cir. · 2016 · confidence medium
First, we reasoned that vagueness doctrine doesn’t apply to the Guidelines because they do not declare any conduct illegal; they’re just “directives to judges for their guidance in sentencing.” Tichenor, 683 F.3d at 364 (quoting United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990)).
discussed Cited as authority (rule) United States v. Ervin
D. Mont. · 2016 · confidence medium
Further, the Ninth Circuit parted company from some other circuits early on in the guidelines regime by holding the guidelines subject to vagueness challenges under the Due Process Clause of the Fifth Amendment—unfortunately in a case called United States v. Johnson, 130 F.3d 1352, 1354 (9th Cir.1997) (acknowledging circuit split represented by United States v. Wivell, 893 F.2d 156, 159-60 (8th Cir.1990)); see also, e.g., United States v. Spencer, 724 F.3d 1133, 1145-46 (9th Cir.2013); United States v. Rearden, 349 F.3d 608, 614-15 (9th Cir.2003); United States v. Gallagher, 99 F.3d 329, 334…
discussed Cited as authority (rule) In Re: William Hunt
11th Cir. · 2016 · confidence medium
Finally, the panel quoted the Eighth Circuit’s decision in United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990), for the proposition that “[b]ecause there is no constitutional right to sentencing guidelines . . . the limitations the Guidelines place on a judge’s discretion cannot violate a defendant’s right to due process by reason of being vague.” Matchett, 802 F.3d at 1194 -95 (quoting Wivell, 893 F.2d at 160 ).
discussed Cited as authority (rule) In re: Charles Therion Clayton
11th Cir. · 2016 · confidence medium
Finally, the panel quoted the Eighth Circuit’s decision in United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990), for the proposition that “[b]ecause there is no constitutional right to sentencing guidelines . . . the limitations the Guidelines place on a judge’s discretion cannot violate a defendant’s right to due process by reason of being vague.” Matchett, 802 F.3d at 1194 -95 (quoting Wivell, 893 F.2d at 160 ).
discussed Cited as authority (rule) In re: Charles Therion Clayton (2×)
11th Cir. · 2016 · confidence medium
Finally, the panel quoted the Eighth Circuit’s decision in United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990), for the proposition that “[bjecause there is no constitutional right to sentencing guidelines ... the limitations the Guidelines place on a judge’s discretion cannot violate a defendant’s right to due process by reason of being vague.” Matchett, 802 F.3d at 1194 -95 (quoting Wivell, 893 F.2d at 160 ).
discussed Cited as authority (rule) In Re: William Hunt (2×)
11th Cir. · 2016 · confidence medium
Finally, the panel quoted the Eighth Circuit’s decision in United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990), for the proposition that “[b]eeause there is no constitutional right to sentencing guidelines ... the limitations the Guidelines place on a judge’s discretion cannot violate a defendant’s right to due process by reason of being vague.” Matchett, 802 F.3d at 1194 -95 (quoting Wivell, 893 F.2d at 160 ).
discussed Cited as authority (rule) United States v. Jesse Pawlak (2×)
6th Cir. · 2016 · confidence medium
Id. at 1194−95 (citing United States v. Tichenor, 683 F.3d 358, 364 (7th Cir. 2012) and United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990)).
discussed Cited as authority (rule) United States v. Nastri
2d Cir. · 2016 · confidence medium
See United States v. Matchett, 802 F.3d 1185, 1196 (11th Cir.2015); United States v. Tichenor, 683 F.3d 358 , 365 n. 3 (7th Cir.2012); United States v. Smith, 73 F.3d 1414, 1418 (6th Cir.1996); United States v. Pearson, 910 F.2d 221, 223 (5th Cir.1990); United States v. Wivell, 893 F.2d 156, 160 (8th Cir.1990).
discussed Cited as authority (rule) United States v. Nastri
2d Cir. · 2016 · confidence medium
See United States v. Matchett, 802 F.3d 1185, 1196 (11th Cir. 2015); United States v. Tichenor, 683 F.3d 358 , 365 n.3 (7th Cir. 2012); United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996); United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990).
cited Cited as authority (rule) State Of Washington v. Seon Leward Graham
Wash. Ct. App. · 2016 · confidence medium
App. 958, 966 , 965 P.2d 1140 (1998) (Aggravating factors "'are simply not susceptible to a vagueness attack.'") (quoting United States v. Wivell. 893 F.2d 156, 159 (8th Cir. 1990)).
cited Cited as authority (rule) United States v. Keith Johnson
8th Cir. · 2016 · confidence medium
In United States v. Wivell, 893 F.2d 156, 159-60 (8th Cir.1990), we held that Guidelines provisions are “not susceptible to” constitutional vagueness challenges.
discussed Cited as authority (rule) Yates v. Snyder-Norris
E.D. Ky. · 2016 · confidence medium
See also United States v. Smith, 73 F.3d 1414, 1418 (6th Cir, 1996); United States v. Pearson, 910 F,2d 221, 223 (5th Cir.1990); United States v. Tichenor, 683 F.3d 358, 363-66 , 365 n. 3 (7th Cir.2012); United States v. Wivell, 893 F.2d 156, 159-160 (8th Cir.1990).
discussed Cited as authority (rule) Lucas v. United States
D.S.D. · 2016 · confidence medium
The Eighth Circuit explained its prior reasoning “that the guidelines cannot be unconstitutionally vague because they do not proscribe conduct is doubtful after Johnson.” Taylor, 803 F.3d at 933 (referencing its reasoning in United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990)).
discussed Cited as authority (rule) United States v. Gregorio Gonzalez-Longoria (2×)
5th Cir. · 2016 · confidence medium
See, e.g., United States v. Velasquez, 2007 WL 2437961 (5th Cir. 2007) (“[The defendant]’s unconstitutional vagueness argument is unfounded because it challenges a [s]entencing [g]uideline, not a criminal statute.”). 3 1 USSG § 2L1.2 separately defines “crime of violence.” Gonzalez-Longoria’s offense undisputedly did not satisfy the § 2L1.2 definition of “crime of violence”; the doubt is about the § 16 definition of “crime of violence,” which is relevant to the § 2L1.2 definition of “aggravated felony.” 2 United States v. Matchett, 802 F.3d 1185, 1195 (11th Cir. 201…
cited Cited as authority (rule) State of Minnesota v. Robin Lyne Hensel
Minn. Ct. App. · 2016 · confidence medium
These "two due process values ... tend to coalesce” even if they are "analytically distinct.” United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990). 5 .
discussed Cited as authority (rule) United States v. Andre Collins
11th Cir. · 2015 · confidence medium
As we explained in Matchett , “[bjecause there is no constitutional right to sentencing guidelines — or, more generally, to a less discretionary application of sentences than that permitted prior to the Guidelines — the limitations the Guidelines place on a judge’s discretion cannot violate a defendant’s right to due process by reason of being vague.” Id. at 1194-95 (quoting United States v. Wivell, 893 F.2d 156, 160 (8th Cir.1990)).
discussed Cited as authority (rule) Petrillo v. United States
D. Conn. · 2015 · confidence medium
See United States v. Tichenor, 683 F.3d 358, 364 (7th Cir.2012) (citing United States v. Brierton, 165 F.3d 1133, 1139 (7th Cir.1999)); United States v. Velasquez, No. 06-41469, 2007 WL 2437961 , at *1 (5th Cir. Aug. 21, 2007) (citing United States v. Pearson, 910 F.2d 221, 223 (5th Cir.1990)); United States v. Smith, 73 F.3d 1414, 1418 (6th Cir.1996) (citing United States v. Salas, No. 93-5897, 1994 WL 24982, at *2 (6th Cir. Jan. 27, 1994)); United States v. Wivell, 893 F.2d 156, 160 (8th Cir.1990).
discussed Cited as authority (rule) United States v. Cornejo-Lopez
D. Neb. · 2015 · confidence medium
United States v. Taylor, 803 F.3d 931 (8th Cir.2015) The Court noted that “[i]n United States v. Wivell, [ 893 F.2d 156, 159 (8th Cir.1990) ] our circuit concluded that the sentencing guidelines are ’not susceptible to a vagueness attack[,]’” but stated that “[t]he reasoning in Wivell that the Guidelines cannot be unconstitutionally vague because they do not proscribe conduct is doubtful after Johnson.” Id. at 932-33; see also Madrid, 805 F.3d at 1213 , 2015 WL 6647060, at *6 (noting that the Eighth Circuits’ holding in Wivell is additionally suspect because it predates Peugh v. …
cited Cited as authority (rule) United States v. Madrid
10th Cir. · 2015 · confidence medium
See United States v. Tichenor, 683 F.3d 358, 363-66 (7th Cir.2012), United States v. Smith, 73 F.3d 1414, 1417-18 (6th Cir.1996); United States v. Wivell, 893 F.2d 156, 159-60 (8th Cir.1990).
discussed Cited as authority (rule) United States v. Chad Taylor (2×)
8th Cir. · 2015 · confidence medium
In United States v. Wivell, our circuit concluded that the sentencing guidelines are "not susceptible to a vagueness attack." 893 F.2d 156, 159 (8th Cir. 1990).
discussed Cited as authority (rule) In re: Gilberto Rivero
11th Cir. · 2015 · confidence medium
And four of our sister circuits have held that the Sentencing Guidelines — whether mandatory or advisory — cannot be unconstitutionally vague because they “do not establish the illegality of any conduct” and are “designed to assist and limit the discretion of the sentencing judge.” United States v. Tichenor, 683 F.3d 358, 363-66 , 365 n. 3 (7th Cir.2012); see also United States v. Smith, 73 F.3d 1414, 1418 (6th Cir.1996); United States v. Pearson, 910 F.2d 221, 223 (5th Cir.1990); United States v. Wivell, 893 F.2d 156, 159-160 (8th Cir.1990).
cited Cited as authority (rule) State v. Ness
Minn. · 2013 · confidence medium
United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990).
examined Cited as authority (rule) United States v. Cristofer Tichenor (3×) also: Cited "see"
7th Cir. · 2012 · confidence medium
Rather, they are “directives to judges for their guidance in sentencing convicted criminals, not to citizens at large.” United States v. Wivell, 893 F.2d 156, 160 (8th Cir.1990).
discussed Cited as authority (rule) State v. Rourke (2×)
Minn. · 2009 · confidence medium
United States v. Wivell, 893 F.2d 156, 160 (8th Cir.1990).
cited Cited as authority (rule) United States v. Idowu, Alowonle
7th Cir. · 2008 · confidence medium
Rather, they are “directives to judges for their guidance in sentencing convicted criminals, not to citizens at large.” United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990).
cited Cited as authority (rule) United States v. Idowu
7th Cir. · 2008 · confidence medium
Rather, they are “directives to judges for their guidance in sentencing convicted criminals, not to citizens at large.” United States v. Wivell, 893 F.2d 156, 160 (8th Cir.1990).
cited Cited as authority (rule) United States v. Dorian Jefferson
8th Cir. · 2008 · confidence medium
United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990).
discussed Cited as authority (rule) State v. Barr
Ariz. Ct. App. · 2008 · confidence medium
See Colautti v. Franklin, 439 U.S. 379, 390 , 99 S.Ct. 675 , 58 L.Ed.2d 596 (1979) (“It is settled that, as a matter of due process, a criminal statute that ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,’ or is so indefinite that ‘it encourages arbitrary and erratic arrests and convictions,’ is void for vagueness.”) (citations omitted); United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990) (“[T]heories supporting the vagueness doctrine presume a law that attempts to proscribe or prescribe conduct.”).
cited Cited as authority (rule) United States v. Paul Roy Peters, IV
unknown court · 2007 · confidence medium
Id. (citing with approval United States v. Wivell, 893 F.2d 156,158 (8th Cir.1990)).
cited Cited as authority (rule) United States v. Tammi Ann Allowitz
11th Cir. · 2006 · confidence medium
Id. at 1182. (citing United States v. Wivell, 893 F.2d 156, 158 (8th Cir.1990)).
discussed Cited as authority (rule) United States v. Stacy Winters (2×)
8th Cir. · 2005 · confidence medium
United States v. Wivell, 893 F.2d 156, 158 (8th Cir.1990).
cited Cited as authority (rule) United States v. Stacy Winters
8th Cir. · 2005 · confidence medium
United States v. Wivell, 893 F.2d 156, 158 (8th Cir. 1990).
discussed Cited as authority (rule) State v. Baldwin (2×) also: Cited "see"
Wash. · 2003 · confidence medium
Jacobson, 92 Wash.App. at 966, 967 , 965 P.2d 1140 (quoting United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990)).
discussed Cited as authority (rule) State v. Baldwin (2×) also: Cited "see"
Wash. · 2003 · confidence medium
App. at 966 , 967 (quoting United States v. Wivell, 893 F.2d 156, 159 (8th Cir. 1990)).
discussed Cited as authority (rule) United States v. Bennett
10th Cir. · 2003 · confidence medium
Compare United States v. Brierton, 165 F.3d 1133, 1139 (7th Cir. 1999); United States v. Salas, No. 93-5897, 1994 WL 24982, at *2 (6th Cir. 1994) (unpublished disposition); and United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990), with United States v. Johnson, 130 F.3d 1352, 1354 (9th Cir.1997).
discussed Cited as authority (rule) Hall v. State
Fla. · 2002 · confidence medium
See United States v. Brierton, 165 F.3d 1133, 1139 (7th Cir.1999) (stating that because "there is no constitutional right to sentencing pursuant to the Guidelines, the discretionary limitations the Guidelines place on the sentencing judge do not violate a defendant's right to due process by reason of vagueness"); United States v. Wivell, 893 F.2d 156, 160 (8th Cir.1990) (stating that "[b]ecause there is no constitutional right to sentencing guidelines—or, more generally, to a less discretionary application of sentences than that permitted prior to the Guidelines—the limitations the Guideline…
discussed Cited as authority (rule) Peterson v. State
Fla. Dist. Ct. App. · 2001 · confidence medium
This argument is misplaced because "there is no constitutional right to sentencing guidelines—or, more generally, to a less discretionary application of sentences than that permitted prior to the Guidelines...." United States v. Wivell, 893 F.2d 156, 160 (8th Cir.1990); see also Lockett v. Ohio, 438 U.S. 586, 603-04 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978)(stating that "legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases ...").
discussed Cited as authority (rule) United States v. Aguilar-Caballero
5th Cir. · 2000 · confidence medium
See U.S. Sentencing Guidelines Manual § 2L1.2 comment, n.1 (defining “felony offense” to mean “any federal, state, or local offense punishable by imprisonment for a term exceeding one year”). 4 granted Mar. 25, 1999; United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990) (“Because there is no constitutional right to sentencing guidelines — or, more generally, to a less discretionary application of sentences than that permitted prior to the Guidelines — the limitations the Guidelines place on a judge’s discretion cannot violate a defendant’s right to due process by reason…
discussed Cited as authority (rule) State v. Wilson
Wash. Ct. App. · 1999 · signal: cf. · confidence medium
Cf. ROW 2.06.110 (requiring Court of Appeals’ judges to report “defects and omissions in the laws as their experience may suggest” to the Supreme Court). 5 Accord United States v. Wivell, 893 F.2d 156, 160 (8th Cir. 1990) (“Because there is no constitutional right to sentencing guidelines—or, more generally, to a less discretionary application of sentences than that permitted prior to the Guidelines—the limitations the Guidelines place on a judge’s discretion cannot violate a defendant’s right to due process by reason of being vague.”); see also United States v. Negri, No. 98…
discussed Cited as authority (rule) State v. Owens
Wash. Ct. App. · 1999 · confidence medium
App. 958 , 965 P.2d 1140 (1998). 17 Id. at 966 (quoting United States v. Wivell, 893 F.2d 156, 159 (8th Cir. 1990)); accord United States v. Brierton, 165 F.3d 1133, 1139 (7th Cir. 1999), reh’g granted, _ F.3d _ (7th Cir. Mar. 25, 1999); State v. Wagner; 194 Ariz. 1 , 976 P.2d 250 (Ct. App. 1998); but see United States v. Johnson, 130 F.3d 1352, 1354 (9th Cir. 1997) (noting that the Ninth Circuit applies vagueness doctrine to sentencing provisions notwithstanding case law questioning the theoretical soundness of doing so).
discussed Cited as authority (rule) State v. Wagner (2×) also: Cited "see"
Ariz. Ct. App. · 1999 · confidence medium
United States v. Wivell, 893 F.2d 156, 159 (8th Cir.1990).
cited Cited as authority (rule) United States v. Bonnie Brierton
7th Cir. · 1999 · confidence medium
Rather, they are “directives to judges for their guidance in sentencing convicted criminals, not to citizens at large.” United States v. Wivell, 893 F.2d 156, 160 (8th Cir.1990).
cited Cited as authority (rule) State v. Jacobson
Wash. Ct. App. · 1998 · confidence medium
The void for vagueness doctrine applies to laws that attempt to “proscribe or prescribe conduct.” United States v. Wivell, 893 F.2d 156, 159 (8th Cir. 1990).
cited Cited as authority (rule) United States v. Lee Vernell Jackson
8th Cir. · 1998 · confidence medium
Id. at 736 , 113 S.Ct. 1770 ; United States v. Wivell, 893 F.2d 156, 161 (8th Cir.1990).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Alan Reed WIVELL, Appellant
89-5104.
Court of Appeals for the Eighth Circuit.
Jan 3, 1990.
893 F.2d 156
Earl P. Gray, St. Paul, Minn., for appellant., Doug Peterson, Minneapolis, Minn., for appellee.
Bowman, Lay, Magill.
Cited by 119 opinions  |  Published
Pinpoint authority: bottom 54%
BOWMAN, Circuit Judge.

Alan Reed Wivell pleaded guilty to a charge of attempted possession with intent to distribute approximately one kilogram of cocaine. The District Court [1] sentenced him under the United States Sentencing Guidelines to seventy-eight months in prison, to be followed by four years of supervised release. On appeal, Wivell asks this[*158] Court to vacate his sentence and remand for resentencing, arguing that his offense level under the Guidelines should have reflected a two-level reduction for acceptance of responsibility. We affirm.

During the course of an undercover investigation, Wivell purchased approximately one kilogram of cocaine from an undercover agent for $24,500 in cash. A search of the automobile in which Wivell rode to the transaction uncovered a .38 caliber revolver and a vehicle purchase contract showing Wivell as the purchaser of the automobile. Wivell was indicted on two counts: Count I, attempted possession with intent to distribute approximately one kilogram of cocaine in violation of 21 U.S.C. §§ 841(a)(1) (1982), 841(b)(l)(B)(ii)(II) (Supp. V 1987) & 846 (1982); and Count II, use of a firearm in connection with a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Supp. V 1987). He pleaded guilty to Count I. Pursuant to his plea bargain, Count II was dismissed at sentencing. Wivell was sentenced to seventy-eight months in prison, to be followed by fouryears of supervised release. Declining to follow the recommendation set forth in the Presentence Investigation Report (PSI), the court did not add to the base offense level two levels for possession of a firearm during the offense. In accordance with the PSI recommendation, the court refused to reduce the base offense level for acceptance of responsibility.

I.

Seeking a remand for resentencing, Wivell first argues that the court sentenced him in violation of law because it did not “state in open court the reasons for its imposition of the particular sentence” as required by 18 U.S.C. § 3553(c) (Supp. V 1987). We disagree. While the court’s written sentencing memorandum in this case is sparing in giving reasons, saying only that the court found the sentence as calculated under the guidelines “appropriate,” the record of the sentencing proceedings shows that the court refused to give credit for acceptance of responsibility because Wivell had continued in his criminal course of conduct after his indictment. We find no error in the court’s failure to articulate specific reasons in the written memorandum, as the reasons appear on the record of the sentencing proceedings in open court. That is all the statute requires. There is no reason to disturb the sentence on this ground and we decline to do so.

II.

Wivell also argues that, because he is entitled to the two-level reduction for acceptance of responsibility, his sentence as imposed was an incorrect application of the Guidelines. Again, we disagree.

To qualify for the reduction, a defendant must "clearly demonstrate[] a recognition and affirmative acceptance of personal responsibility for his criminal conduct." United States Sentencing Commission, Guidelines Manual, § 3E1.1(a) (Nov. 1989) (hereinafter U.S.S.G.). Wivell claims that in pleading guilty he believed he had accepted responsibility-what more could he do? In our view, however, this argument completely misses the point of this provision. Wivell apparently interprets the two-point reduction for acceptance of responsibility as statutory bait for a guilty plea. [2] But acceptance of responsibility means what it says: a defendant must sincerely have accepted responsibility for his crime. While the sentencing judge cannot peer into the defendant's heart to discover whether a defendant is genuinely contrite, he can look for outward manifestations of acceptance of responsibility, such as those listed in the Guidelines. [3] A defendant's[*159] calculated simulations of remorse, however, do not automatically entitle him to a discount in his sentence for acceptance of responsibility. Thus, the Guidelines specifically deny an absolute right to a two-point reduction on the basis of a guilty plea, U.S.S.G. § 3El.l(c), and emphasize that “the sentencing judge is in a unique position” to determine whether the defendant has accepted responsibility for his acts. Id. at comment, (n.5).

A reviewing court should give “great deference” to a lower court’s conclusion regarding this matter, disturbing it on appeal only if it is “without foundation.” Id.; United States v. Thompson, 876 F.2d 1381, 1384 (8th Cir.), cert. denied, - U.S. -, 110 S.Ct. 192, 107 L.Ed.2d 147 (1989). Applying that standard of review, we do not believe the District Court’s determination was “without foundation.” The District Court specifically found that Wivell’s arrest for dealing in cocaine while he was on bond awaiting disposition of this case was a clear indication that he was continuing his criminal course of conduct, and thus the court concluded that Wivell was not entitled to credit for acceptance of responsibility, despite his guilty plea, his expression of remorse, and his expression of a need for drug treatment. [4] We deny Wi-vell’s request to vacate the sentence on this ground.

III.

Wivell also challenges the acceptance of responsibility provision of the Guidelines as unconstitutionally vague both on its face and as applied to him. We must flatly reject both arguments because the Sentencing Guidelines are simply not susceptible to a vagueness attack.

The vagueness doctrine holds that a person cannot be held liable for conduct he could not reasonably have been expected to know was a violation of law. “It is settled that, as a matter of due process, a criminal statute that ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,’ or is so indefinite that ‘it encourages arbitrary and erratic arrests and convictions,’ is void for vagueness.” Colautti v. Franklin, 439 U.S. 379, 390, 99 S.Ct. 675, 683, 58 L.Ed.2d 596 (1979) (citations omitted). Although these two due process values secured by the vagueness doctrine tend to coalesce, they are analytically distinct. The first — notice—focuses on the state of mind of the citizen in commanding that the rules he must follow be comprehensible. The second — arbitrary enforcement — concerns the behavior of law enforcement officials, and therefore condemns such empowering statutory devices as status crimes or “punishment by analogy.” Papachristou v. City of Jacksonville, 405 U.S. 156, 168, & n. 8, 92 S.Ct. 839, 846, & n. 8, 31 L.Ed.2d 110 (1972). “These statutes are in a class by themselves_ Definiteness is designedly avoided so as to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of police and prosecution although not chargeable with any particular offense.” Winters v. New York, 333 U.S. 507, 540, 68 S.Ct. 665, 682, 92 L.Ed. 840 (1948) (Frankfurter dissenting), quoted in Papachristou, 405 U.S. at 166, 92 S.Ct. at 845. But both theories supporting the vagueness doctrine presume a law that attempts to proscribe or prescribe conduct.

[*160] The Sentencing Guidelines do not define illegal conduct: they are directives to judges for their guidance in sentencing convicted criminals, not to citizens at large. It is well established that, with the exception of capital cases, [5] there is no constitutional right to such directives. Lockett v. Ohio, 438 U.S. 586, 603, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (“[Ljegislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases.... ”). Indeed, a defendant’s due process rights are unimpaired by the complete absence of sentencing guidelines. Thus, in Britton v. Rogers, 631 F.2d 572 (8th Cir.1980), cert. denied, 451 U.S. 939, 101 S.Ct. 2021, 68 L.Ed.2d 327 (1981), this Court upheld a life sentence imposed by a jury pursuant to a statute that provided a sentencing range of from thirty years to life imprisonment, but which contained no standards to guide the jury in its sentence determination. The appellant in that case argued that the absence of sentencing guidelines violated his right to due process under the United States Constitution. We held that the Constitution does not require sentencing guidelines in noncapital cases. 631 F.2d at 578; accord Vines v. Muncy, 553 F.2d 342, 347-48 (4th Cir.1977); see also United States v. Rich, 518 F.2d 980, 987 (8th Cir.1975) (“Due process is not violated by failure of a sentencing statute to specify the maximum sentence of prison or parole.”), cert. denied, 427 U.S. 907, 96 S.Ct. 3193, 49 L.Ed.2d 1200 (1976) cited with approval in United States v. Sims, 529 F.2d 10, 12 (8th Cir.1976) and United States v. Meirovitz, 747 F.2d 488, 489 (8th Cir.1984). [6]

Because there is no constitutional right to sentencing guidelines — or, more generally, to a less discretionary application of sentences than that permitted prior to the Guidelines — the limitations the Guidelines place on a judge’s discretion cannot violate a defendant’s right to due process by reason of being vague. It therefore follows that the Guidelines cannot be unconstitutionally vague as applied to Wivell in this case. Even vague guidelines cabin discretion more than no guidelines at all. What a defendant may call arbitrary and capricious, the legislature may call discretionary, and the Constitution permits legislatures to lodge a considerable amount of discretion with judges in devising sentences.

Moreover, appellant’s vagueness challenge is uniquely absurd in the context of acceptance of responsibility. This provision is designed as a specific attempt to accommodate individualized sentencing— that is, discretionary sentencing — within a uniform set of guidelines. Even if Wivell had a due process right to greater clarity in some other Guidelines provision, which he does not, he would still have no vagueness argument against this small tribute in the Guidelines to judicial discretion. The fact is that the text of the Guidelines defines with some precision what it means for a defendant to accept responsibility: he must “demonstrate[ ] a recognition and affirmative acceptance of personal responsibility for his criminal conduct.” U.S.S.G. § 3El.l(a). The commentary to the acceptance of responsibility section goes on to list seven rather precise “appropriate considerations” in the application of this section. See supra, note 3. The text and the commentary thus add sufficient flesh to the bare bones of the acceptance of responsibility provision to shield that provision from any possibility of successful attack on vagueness grounds, either facial or as applied.

[*161] IV.

Our decision upholding the District Court’s denial of the two-level reduction for acceptance of responsibility moots a remaining issue raised by Wivell. If Wivell had received the reduction for acceptance of responsibility, his Guidelines sentence would be in the range of fifty-one to sixty-three months. Without the reduction, the low end of the range is sixty-three months. Pursuant to 21 U.S.C. § 841(b)(l)(B)(ii)(II), under which Wivell was sentenced, a defendant in possession with intent to distribute 500 grams or more of a substance containing cocaine is subject to a mandatory minimum sixty-month sentence and a mandatory four years of supervised release. Wivell has asked us to consider the applicability of these mandatory provisions to the attempted-possession offense to which he pleaded guilty. Because we affirm the District Court’s denial of credit for acceptance of responsibility, the low end of Wivell’s sentencing range remains above the mandatory minimum. Thus the issue is moot and we do not reach it.

Wivell also challenges the applicability of the mandatory four years of supervised release to his attempt conviction. 21 U.S.C. § 841(b)(l)(B)(ii)(II). The District Court’s sentencing memorandum cited the statute in imposing four years of supervised release upon Wivell, and our decision to affirm the sentence does not moot this issue. Wivell failed, however, to raise this issue below and in fact stipulated his understanding that a minimum four years of supervised release was the statutory penalty when he signed the plea agreement. We therefore may reverse only upon a finding of “plain error resulting in a miscarriage of justice.” United States v. Meeks, 857 F.2d 1201, 1203 (8th Cir.1988). This does not come close to being a case of plain error. Moreover, even if the issue had been preserved for appellate review, Wivell’s challenge would fail. The court had statutory authority, independent of the particular statutory authority that Wivell challenges, for imposing four years of supervised release on Wivell because of his classification as a Class B felon. See 18 U.S.C. § 3559(a)(1)(B) (Supp. V 1987) & 21 U.S.C. § 841(b)(1)(B). In fact, Wivell was subject to up to five years of supervised release. 18 U.S.C. § 3538(a), (b)(1) (Supp. V 1987); U.S.S.G. § 5D1.2(b)(l). Wivell therefore is not entitled to have his term of supervised release vacated or modified.

The sentence imposed on Wivell by the District Court is affirmed.

1

. The Honorable Diana E. Murphy, United States District Judge for the District of Minnesota.

2

. We observe that, as a result of his plea bargain with the government, a serious federal firearms charge was dropped and "the government agree[d] not to charge the defendant with any additional crimes based upon information” the government then had. Plea Agreement at 2.

3

. 1. In determining whether a defendant qualifies for this provision, appropriate considerations include, but are not limited to, the following:

(a) voluntary termination or withdrawal from criminal conduct or associations;
[*159] (b) voluntary payment of restitution prior to adjudication of guilt;
(c) voluntary and truthful admission to authorities of involvement in the offense and related conduct;
(d) voluntary surrender to authorities promptly after commission of the offense;
(e) voluntary assistance to authorities in the recovery of the fruits and instrumentalities of the offense;
(f) voluntary resignation from the office or position held during the commission of the offense; and
(g)the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility-

U.S.S.G. § 3E1.1, comment, (n. 1).

4

. Because we believe appellant’s youth (he was twenty-four years old at the time of his arrest and sentencing) and lack of a prior criminal record are utterly irrelevant to whether he had accepted responsibility, we reject as totally without merit his argument that these factors militated for the two-point reduction in this case.

5

. Cf., e.g., Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991-92, 49 L.Ed.2d 944 (1976) (“[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long.... Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”).

6

. See also Dorszynski v. United States, 418 U.S. 424, 437, 94 S.Ct. 3042, 3049-50, 41 L.Ed.2d 855 (1974) (interpreting the Federal Youth Corrections Act as "preserv[ing] the unfettered sentencing discretion of federal district judges”); Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284-85, 2 L.Ed.2d 1405 (1958) (holding that there is no appellate review of sentences imposed within the statutory limit).