One effort at a downward adjustment Nacchio is apparently not trying to make is the one based upon “Acceptance of Responsibility” or commonly referred to as “remorse." If Nacchio had shown “remorse,” the resulting two base levels decrease would have reduced his range under the federal sentencing guidelines from 70-87 months to 57-71 months. However, the decrease for remorse is very limited--it appears that Nacchio would not qualify even if he expresses remorse now as shown by the following comment to the “Acceptance of Responsibility” provision under the Federal Sentencing Guidelines:
"This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.”Since Nacchio put the government to its burden of proof at his trial relating to the essential factual elements of insider trading, Nacchio’s attempt to express remorse now would be too late. Regardless, Nacchio probably could not bring himself to accept responsibility because of his belief that he did nothing wrong (especially if Nacchio believes in his own infallibility). His legal counsel will press on appeal that Nacchio was effectively prevented at his trial to present evidence of positive nonpublic information (future secret government contracts) that would have offset the adverse material nonpublic information he might have possessed at the time of selling his Qwest stock.