[40] ROVNER, Circuit Judge, dissenting in part.

We have reached a troubling point in our sentencing jurisprudence when we allow defendants to be given longer prison terms — here at least fifteen months longer — based on the legal challenges they have made to matters unrelated to their guilt. I join my colleagues today in affirming the restitution provisions of McIntosh's sentence. But I respectfully part ways with them on the acceptance of responsibility question.

When a court denies a defendant credit for acceptance of responsibility, it typically is because he has refused to genuinely admit his guilt. That is not so here. From virtually the outset of this prosecution, Carlton McIntosh has candidly acknowledged his criminal misdeeds to the government, and ultimately of course he did so to the court when he formally pleaded guilty. This course of conduct constitutes "significant evidence of acceptance of responsibility." See U.S.S.G. § 3E1.1, comment. (n. 3) (1998); see also id. (n. 1(a)). The district judge nonetheless refused him a sentencing reduction for acceptance of responsibility, not because of anything he said or did not say about his criminal conduct, but because he filed two motions (one of them through his attorney) seeking dismissal of the indictment on legal grounds. I cannot join my colleagues in endorsing this aspect of the sentence.

I agree that under the right circumstances, the content of a defendant's motion, objection, or other pleading can reflect a refusal to accept responsibility for his actions. Our prior decisions recognize that when a defendant makes arguments that, in effect, contest his responsibility for the offense of conviction or conduct that is relevant to it (see U.S.S.G. § 1B1.3), the district court is free to deny him the sentencing reduction under Guidelines section 3E1.1(a) just as it may when the defendant, in allocution, deflects blame for his actions. See, e.g., United States v. Purchess, 107 F.3d 1261, 1266-69 (7th Cir. 1997) (defendant's objections to pre-sentence report challenged facts related to relevant conduct); United States v. Trussel, 961 F.2d 685, 691 (7th Cir. 1992) (defendant filed motion seeking to withdraw guilty plea based on assertions in conflict with statements he made under oath at change of plea hearing). But we have never before today suggested that a defendant may be denied credit for acceptance of responsibility based solely on legal or procedural arguments that in no way question his own conduct. Although my colleagues, like the district judge, posit that McIntosh pursued his motions in a manner that was inconsistent with taking responsibility for his crime (ante at 10-11), the record simply does not bear them out on that point. The decision to affirm the district court without that support sets an alarming precedent that may discourage attorneys from vigorous advocacy on behalf of their clients and penalize defendants for their uninformed, pro se pleadings.

My colleagues rightly emphasize at the outset that the district court's assessment of a defendant's acceptance of responsibility is entitled to great deference. Ante at 4-5. I could not agree more. Judge Flaum, Judge Kanne, and I have all sat where Judge Hamilton sits today. We know first-hand the weighty burden of sentencing. Collectively, we have looked across the bench hundreds of times at the face of a person we are about to send to prison. We have seen the teary eye and trembling hand, heard the quaking voice. We have noted the declaration of remorse, the passionate pledge that this crime was the last. And we have witnessed more than one such defendant later return to crime at the first opportunity. Experience has therefore taught us that not all expressions of remorse are genuine; and yet we also know how hard it can be to determine which ones are real. So if this were a case in which Judge Hamilton had listened to McIntosh's allocution, looked him in the eye, and found sincerity lacking in his expressions of culpability and remorse, then I would be the first to say to say that we should defer to his judgment. See, e.g., Purchess, 107 F.3d at 1269 (Rovner, J.); see also United States v. Zaragoza, 123 F.3d 472, 480 (7th Cir.), cert. denied, 522 U.S. 923, 118 S.Ct. 317 (1997); United States v. Dvorak, 41 F.3d 1215, 1217 (7th Cir. 1994); United States v. Kerr, 13 F.3d 203, 205 (7th Cir. 1993), cert. denied, 511 U.S. 1060, 114 S.Ct. 1629 (1994).

In this case, however, the district judge cited two — and only two — reasons for finding that McIntosh had not accepted responsibility for his crimes, and those are the legal challenges that he raised in his Speedy Trial Act motion and his pro se motion to dismiss the indictment. If our deference is genuine, then it is on those two motions that we must focus. There were, as my colleagues note, other factors argued with respect to the acceptance assessment. But Judge Hamilton expressly disclaimed any reliance upon them. His words are worth repeating:

I am not considering the give and take in plea negotiations. I am not considering objections raised to the presentence report's guideline calculations. . . .

What I do find difficult — well, for me impossible to reconcile with genuine remorse in this case — is Mr. McIntosh's efforts to seek dismissal in this case on speedy trial act grounds, and then on an extraordinarily technical reading of the indictment even after he had pled guilty.

R.47 at 23-24. My colleagues also point out that the district court "has a responsibility to look at the whole picture" in evaluating the defendant's remorse. Ante at 8-9. "[I]t was no doubt significant," they reason, that "McIntosh habitually employed deceit" in defrauding financial institutions (ante at 9); and his criminal history — in particular his habit of committing new crimes while free on bond or supervised release from other charges — "would certainly be useful to place in context McIntosh's profession of remorse in this case and conduct during the course of the proceedings below" (id.). All well and good. But as my colleagues candidly acknowledge, the district judge in fact did not consider McIntosh's prior crimes in deciding whether he had genuinely accepted responsibility. See ante at 8. We must therefore resist the urge to bolster the district court's findings with rationale that it might have, but did not, articulate. We do as great a disservice to the discretion of the lower court when we posit grounds that the district judge never relied on as when we ignore those on which the judge actually did rely.

I turn first to the Speedy Trial Act motion. One might think, after reading the sentencing transcript and the majority opinion, that McIntosh spent ten months driving a hard bargain with the government and then, ignoring the fact that he himself was partly responsible for the protracted nature of the plea negotiations, did a sudden about face and filed a surprising and essentially inappropriate motion invoking the Speedy Trial Act. See ante at 10-11. In other words, to quote the prosecutor, McIntosh "put everybody in a trick bag. . . ." R.47 at 20. I have no doubt that the Speedy Trial Act motion was indeed a surprise, for if there is one thing that this record makes crystal clear, it is that no one was paying any attention whatsoever to the speedy trial clock. As to the propriety of the motion, two points must be made. First, as the record reveals, a serious Speedy Trial Act question was presented in this case. Second, although it was McIntosh's counsel who filed and prosecuted the Speedy Trial Act motion, the district court never made the inquiry required by our opinion in Purchess before holding McIntosh himself responsible for this motion.

It might surprise the reader, as it did me, to learn that in the ten months that passed between the filing of the information and the grand jury's subsequent return of an indictment, McIntosh did not appear in court so much as once. See R.11, Docket Sheets for Case No. IP97-CR-0070-01-H/F. No petition to enter a plea of guilty was filed with the information, as is typically the case. See R.19 at 4. Indeed, McIntosh was never asked, on the record, how he wished to plead to the information. In apparent violation of 18 U.S.C. § 3161(a), the case was never scheduled for trial. R.19 at 5. No hearing was conducted during this period to ascertain the status of the case. R. 11, Docket Sheets for Case No. IP97-CR-0070-01-H/F. And at no time was an order entered tolling the 70-day period in which the Speedy Trial Act requires a trial. Id.; see 18 U.S.C. § 3161(c)(1).

Under these circumstances, it is not at all hard to appreciate why the new attorney appointed to represent McIntosh after the indictment was filed concluded that there was a Speedy Trial Act problem here. Neither he nor anyone else, of course, was under any illusion as to what had been going on for ten months — everyone understood that a guilty plea had been anticipated, that the plea negotiations were complex, and that ultimately talks had broken down. But the fact that close to a year had passed without a plea, without so much as a status hearing, without any order establishing reasons for tolling the speedy trial clock, all but invited his motion to dismiss. And it was far from clear that the motion lacked merit. The parties' memoranda below, as well as the transcript of the evidentiary hearing that the court conducted on the motion, reflect sharply divergent views, indeed a general befuddlement, even as to the threshold question of when and whether the speedy trial clock had begun to run. See R.11 at 4-5; R. 15 at 8; R. 19 at 9; R.54 at 41, 46-48, 50, 51, 54-58; see also id. at 59 (district judge: "I'm not going to try to rule today, I assure you, given the puzzle this presents under various provisions of the Speedy Trial Act."). The government, for example, argued not that the lengthy plea negotiations had stopped the speedy trial clock, but rather that the clock had never begun to tick. R.15 at 8. That remarkable view Judge Hamilton quite rightly rejected. See R.19 at 9-10, citing, among other cases, United States v. Bailey, 957 F.2d 439, 443 (7th Cir.), cert. denied, 505 U.S. 1229, 112 S.Ct. 3053 (1992). Indeed, Judge Hamilton himself ultimately agreed that the 70-day period on the bank fraud charge contained in the information had, in fact, expired and that the Speedy Trial Act had thus been violated. R.19 at 10. He simply concluded that a dismissal of the original information, had it been sought before the indictment was filed, would appropriately have been granted without prejudice, leaving the door open to the charge of money laundering that was later asserted in the indictment. R.19 at 13. As a practical matter, then, Judge Hamilton did not believe it appropriate to grant the motion to dismiss the indictment, notwithstanding the Speedy Trial Act violation. Id. at 13, 14-15.

The most that can be said in criticism of the Speedy Trial Act motion is that McIntosh and his counsel waited until so late in the day to file it. Yet, the reasons for the delay in pursuing the motion are clear and, so far as the record reveals, they have nothing to do with McIntosh himself. First, speedy trial disputes typically arise when, as here, the court and counsel fail to make a contemporaneous record as to the status of the speedy trial clock. When the court conducts regular status hearings in advance of trial, identifies the matters (such as pretrial motions) that will toll the clock, and ascertains that everyone is on the same page as to the time remaining for trial, there will not be the kinds of lingering doubts and questions that invite an eleventh-hour Speedy Trial Act motion. I realize, of course, that Judge Hamilton did keep track of the case informally, through his staff. See R.15 at 4; R.54 at 36. But had he made an appropriate record while the plea negotiations were ongoing, he would have obviated any need for an after-the-fact inquiry as to whether and when the speedy trial clock had expired. Second, when McIntosh's current counsel came into the case — after the plea negotiations had come to an impasse and the grand jury had returned the indictment — he recognized the speedy trial question in short order and pursued it promptly. See R.13 at 2 ¶¶ 5-6. It turns out that McIntosh's previous counsel, much like the prosecutor, had labored under the impression that the speedy trial clock had not begun to run with the filing of the information (see R.19 at 9; R.54 at 41, 46-48, 50, 51, 54-58) — an understanding that was in error. See R.19 at 9-10. Third, as the testimony presented to Judge Hamilton on this issue makes clear, McIntosh himself never agreed to waive his rights under the Speedy Trial Act. R. 54 at 41. Consequently, I fail to see how he can be blamed for asserting those rights even at a late date, when his counsel did not recognize the speedy trial problem any sooner.

Equally troubling is the fact that the court held McIntosh responsible for the speedy trial motion without ever ascertaining the extent to which McIntosh, as opposed to his counsel, was responsible for the motion. See United States v. Purchess, supra, 107 F.3d at 1268-69. In Purchess, we recognized the possibility that an attorney may make certain factual assertions on behalf of his or her client — concerning the offense of conviction or relevant conduct, in particular — that are inconsistent with the defendant's acceptance of responsibility. Id. at 1266-67. Yet, "the assessment of acceptance of responsibility is typically an assessment personal to the defendant." Id. at 1267 (emphasis mine). Therefore, where the defendant is otherwise silent as to his attorney's representations, the court has a duty to inquire whether the defendant understands and agrees with what his attorney is saying. Id. at 1268-69. If so, the attorney's words "can be and should be attributed to [the defendant]." Id. Absent such an endorsement by the defendant himself, the assertions should be disregarded. Id. Here, of course, the speedy trial motion made no factual assertions at all regarding McIntosh's conduct; it was simply an assertion of his statutory right to a speedy trial. I have my doubts as to whether such legal or procedural challenges, absent a showing of bad faith, are even relevant to the acceptance of responsibility determination. See, e.g., Purchess, 107 F.3d at 1267 ("the district court should not deny the reduction for acceptance simply because the defendant challenges a legal conclusion drawn from the facts the defendant admits"); see also United States v. Wright, 133 F.3d 1412, 1416 (11th Cir.) (Kravitch, J., dissenting) ("because such a holding would create constitutional infirmities in the Sentencing Guidelines, other circuits have concluded that legal challenges alone cannot form the basis for a denial of a downward adjustment for acceptance of responsibility") (collecting cases), cert. denied, 119 S.Ct. 217 (1998). But assuming that they are, the district court was obliged before holding McIntosh responsible for the motion to confirm on the record that McIntosh himself fully appreciated and embraced the motion. Purchess, 107 F.3d at 1268-69. Having failed to make this inquiry of McIntosh, the court could not rely upon the speedy trial motion as a basis for denying McIntosh credit for acceptance of responsibility.

The other motion that the district court cited as evidence that McIntosh had not accepted responsibility for his offense was a pro se motion, made by way of a letter, that in relevant part asked the court to dismiss the indictment because it did not allege that Bank One, from which McIntosh had defrauded the money, was a federally insured institution. See 18 U.S.C. § 1957(a) (f)(1), 1956(c)(6); 31 U.S.C. § 5312(a)(2). Judge Hamilton deemed the motion inconsistent with acceptance of responsibility because, based on "an extraordinarily technical reading of the indictment," it sought to dismiss the prosecution after McIntosh had already pleaded guilty. R.47 at 24. Once again, however, when one considers carefully what the record reveals about McIntosh's pro se motion, one finds no support for the notion that McIntosh was attempting to deflect responsibility for his criminal acts.

First, the argument that McIntosh advanced in the motion was that the indictment, in omitting to allege that Bank One was insured by the Federal Deposit Insurance Corporation, failed to state a federal offense. In pleading guilty, of course, McIntosh had waived any non-jurisdictional defects in the indictment. E.g., United States v. Cain, 155 F.3d 840, 842 (7th Cir. 1998). So one might argue that a belated attempt to capitalize on such defects amounts to an inappropriate attempt to make an end run around the plea. But McIntosh's motion posited a jurisdictional defect in the indictment, and we have held that the defendant retains the right to raise such fundamental defects even after pleading guilty. United States v. DiFonzo, 603 F.2d 1260, 1263 (7th Cir. 1979), cert. denied, 444 U.S. 1018, 100 S.Ct. 672 (1980); accord United States v. Spinner, 180 F.3d 514, 516 (3d Cir. 1999) (collecting cases); see also Fed.R.Crim.P. 12(b)(2) (motions asserting that indictment fails to state offense "shall be noticed by the court at any time during the pendency of the proceedings"). The Guidelines themselves recognize that the defendant is entitled to pursue an issue unrelated to factual guilt without forfeiting credit for acceptance of responsibility. Thus, the commentary acknowledges that even a defendant who insists on a trial may yet be eligible for the reduction if he does so "to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct)." U.S.S.G. § 3E1.1, comment. (n. 2). Thus, McIntosh had every right to question the jurisdictional sufficiency of the indictment notwithstanding his guilty plea.

Second, to the extent that the motion lacked merit, as the district court suggested, one must note that McIntosh himself withdrew the motion at the very outset of the sentencing hearing, when the court first mentioned it. R.47 at 2. As McIntosh explained to the court: "I talked it over with my attorney and I found out that I was maybe wrong about the situation." Id. So McIntosh did precisely what Rule 11 directs a litigant to do in the civil context when he has filed a frivolous pleading — he retracted it. See Fed.R.Civ.P. 11(c)(1)(A). Actually, so far as the record reveals, he did the civil rule one better, by withdrawing the motion before either the court or the government indicated that they viewed the motion as lacking merit. See id. In a civil case, such prompt action typically would grant the filer of the pleading "safe harbor" from sanctions, and for the obvious reason — the parties and the court are spared the effort and expense of litigating a groundless contention. See Rule 11, Advisory Committee Notes (1993 Amendments). Here the withdrawn motion, in conjunction with the Speedy Trial Act motion, bought McIntosh another fifteen months in jail.

Third, the motion in no way disputes McIntosh's criminal conduct. Because McIntosh himself authored the motion, I have no quarrel with the court's authority to consider what the motion had to say about his remorse and acceptance of responsibility. A defendant certainly can be held responsible for his own choices; and if he opts to file a pleading that takes issue with his factual guilt, the court can treat that as direct evidence that he has not come to terms with his crime. See, e.g., United States v. Trussel, supra, 961 F.2d at 691 (district court properly relied on assertions made in defendant's pro se request to withdraw guilty plea). In this respect, McIntosh's pro se motion stands on a different footing than the Speedy Trial Act motion that his attorney filed; there is, in other words, no need for the type of inquiry that Purchess demands. See 107 F.3d at 1268-69. Yet, McIntosh's motion posited a jurisdictional defect in the indictment, nothing more.

The most for which McIntosh can legitimately be criticized, then, is filing a motion without seeking or heeding the advice of his attorney. I can certainly appreciate why a court might find that course of action frustrating; and had McIntosh not withdrawn the motion, the district judge would have been within his rights to insist that McIntosh either leave the motions practice to his counsel or choose to proceed without representation. See Hayes v. Hawes, 921 F.2d 100, 102 (7th Cir. 1990). But I am perplexed as to why a single pro se pleading, which had nothing whatsoever to say about the defendant's factual culpability and which was voluntarily withdrawn before the court wasted so much as a minute of time addressing it, could be construed as a refusal to accept responsibility. The reality is, defendants often harbor suspicions at one point or another that their attorneys are not vigorously pursuing every possible argument on their behalf. Regrettably, those doubts are sometimes justified. E.g., Hall v. Washington, 106 F.3d 742 (7th Cir.), cert. denied, 522 U.S. 907, 118 S.Ct. 264 (1997); Mason v. Hanks, 97 F.3d 887 (7th Cir. 1996). I don't find it at all surprising that someone like McIntosh, after spending a few hours in a law library, would think the indictment flawed in this case. The statute, after all, criminalizes a particular kind of "monetary transaction," defined as a transaction that, among other things, takes place through a "financial institution," which a series of cross-references in turn reveals to be a federally insured bank. See 18 U.S.C. § 1957(a) (f)(1); 1956(c)(6); 31 U.S.C. § 5312(a)(2)(A); 12 U.S.C. § 1813(h). Because the indictment is devoid of any allegation concerning Bank One's insured status, a reasonable layperson — for that matter, an inexperienced lawyer — might readily think the indictment deficient. McIntosh's capable counsel saw the hole in the argument — Bank One in fact is a large, federally insured bank, and even if the indictment were technically flawed in failing to so allege, dismissal would be a pyrrhic victory given the government's ability to supersede the indictment. See R.47 at 3-4. Sooner rather than later, McIntosh came to appreciate this point. See id. at 4-5 ("I thought that the indictment didn't read a federal charge, but he informed me the indictment could be superseded, so that's why I agree with my lawyer at this point in time and go on with sentencing."). No harm was done, and no false protestation of innocence was made.

A final notion remains — that irrespective of their merits, the Speedy Trial Act motion and the motion attacking the indictment evinced an effort to "manipulate" the system. Ante at 10-11; R.47 at 24. Filing motions and invoking a variety of legal rights in an effort to outmaneuver one's opponent and secure a favorable outcome is a staple in both civil and criminal cases. If that conduct amounts to manipulation, then manipulation is the hallmark of our adversarial system of justice. Unless and until conducting oneself like a lawyer becomes a basis for meting out longer prison terms, the mere fact that a defendant files a motion that, if successful, might result in the dismissal of the case cannot legitimately suffice to deny him credit for acceptance of responsibility.

As our cases make clear, the only "manipulation" that is relevant to acceptance of responsibility is a motion, objection, or argument that in some way contests the defendant's factual guilt. That is the common theme sounded in each of the three precedents that my colleagues cite: Trussel, Purchess, and Robinson. See ante at 10. In Trussel, the district court denied the defendant credit for acceptance of responsibility in part because he filed a motion to withdraw his guilty plea, contending that the government had entrapped him and that his lawyers had been ineffective in pursuing this line of defense. Yet, just two months earlier, at the change of plea hearing, the defendant had indicated under oath that he was "fully satisfied" with his lawyers' advice and there was nothing that he had asked of them that they had not done. See 961 F.2d at 688-89. In fact, the court had previously continued the change of plea hearing so that the defendant could discuss the entrapment defense with his counsel. Id. Against this backdrop, the district judge believed that the motion to withdraw the plea amounted to "prevarication" and an attempt to "manipulate" and "whipsaw" the court. Id. at 689, 691. We agreed and found no error in the decision not to credit the defendant for acceptance of responsibility. We noted that "[the defendant's] behavior was akin to (though not exactly the same as) obstructing justice; normally, a defendant who obstructs or attempts to obstruct justice is not entitled to a reduction for accepting responsibility." Id. at 691, citing U.S.S.G. § 3E1.1 (comment.) (n. 4). In Purchess, the defendant's attorney filed written objections to the pre-sentence report contesting certain facts involving his relevant conduct and pursued those objections at the sentencing hearing; meanwhile the defendant himself remained silent. In passing sentence, the district judge refused to credit the defendant for acceptance, in part because the defendant, through his counsel, had contested his relevant conduct. See 107 F.3d at 1264-65. On appeal, we characterized this defense strategy as an attempt "to manipulate the Guidelines." Id. at 1267. We thus agreed that the district court could refuse to grant the acceptance reduction based on that strategy, so long as the court first ascertained that the defendant himself understood and embraced his attorney's arguments. Id. at 1267-69. Finally, in Robinson, we found no plain error in the district court's refusal to reduce the defendant's sentence by an additional third level for timely acceptance of responsibility (see U.S.S.G. § 3E1.1(b)(2)) based on extensive pre-trial proceedings indicating that the defendant had planned to challenge the government's evidence against her. 20 F.3d at 274-75. In all three of these cases, then, the motions and arguments that foreclosed the reduction for acceptance of responsibility in one way or another signaled the defendant's wish to contest her criminal culpability.

The record in this case lends no support to the proposition that McIntosh attempted to "manipulate" the court or the judicial system in the manner that our opinions on this subject have recognized. Neither of McIntosh's two motions purported to deny his guilt; in fact, neither one of them addressed his conduct at all. True, both motions sought dismissal of the case, and in that sense they can be viewed as an effort to "beat the rap." But both motions were based on rights that the law guarantees to the guilty as well as the innocent. The first was made by an attorney who was new to the case and had an eye for a Speedy Trial Act problem that others had missed and which the district court itself ultimately acknowledged. R.19 at 10. McIntosh himself authored the second motion, but withdrew it on his own initiative after his attorney led him to appreciate its lack of merit. If these two motions suffice as a basis to withhold credit for acceptance of responsibility, then I can no longer discern a meaningful limit on a court's ability to penalize a defendant for asserting his constitutional, statutory, or procedural rights.

I speak without the authority of a majority today when I urge my colleagues on the district court to tread with the utmost care in this area. As we recognized in Purchess, the defendant is entitled to make legal arguments without putting at risk the credit that the Sentencing Guidelines would normally grant him for a candid admission of guilt. "Otherwise, the constitutional rights to effective assistance of counsel and due process are illusory." 107 F.3d at 1267. A court acts well within the boundaries of its discretion when it concludes, based on pleadings that in some concrete way contradict the admission of guilt, that the defendant has not genuinely accepted responsibility for his criminal actions. As I have explained at length, however, the two motions that McIntosh and his counsel filed simply do not fall into that category.

Because the record lends no support to the proposition that McIntosh was attempting to shirk blame for his conduct, I believe the appropriate course is for us to vacate the sentence and to remand for re-sentencing. As that is not the conclusion my colleagues have reached, I respectfully dissent.