IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-21034
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ALFREDO SALINAS, also known
as Freddy Salinas,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
August 26, 1997
Before SMITH, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
This appeal by the government addresses the probation
department’s recommendation in the Presentence Investigation Report
(PSR) that Defendant-Appellee Salinas be granted a two point
downward adjustment for acceptance of responsibility and the
district court’s acceptance of that recommendation. When we apply
the Bermea1 standard of review to the district court’s
1
United States v. Bermea, 30 Fed.3d 1539, 1577 (5th Cir.
1994).
determination of acceptance of responsibility, as we must, being a
more deferential standard than clearly erroneous, we are not
inclined to disturb Salinas’ sentence and therefore affirm.
I
FACTS AND PROCEEDINGS
Salinas was convicted following a plea of guilty of conspiracy
to harbor and transport illegal aliens in violation of 8 U.S.C.
§ 1324 and 18 U.S.C. § 371. His indictment asserted that Salinas
harbored “several” illegal aliens in his house in Rivera, Texas, on
February 25, 1996, and March 20, 1996. Following his guilty plea
without benefit of a plea agreement, he was sentenced to an eight
months term of imprisonment.
The PSR recounted several alien harboring incidents involving
Salinas and a total of 36 illegal aliens. Salinas did not object
to the relevant conduct recitations of the PSR. Noting Salinas’
acknowledgment of responsibility for involvement in the offense,
his expressions of remorse, and his entry of a guilty plea to
Count 1, the PSR recommended a two-point downward adjustment for
acceptance of responsibility. Following objection by the
government for lack of sufficient information upon which to assess
acceptance of responsibility by Salinas, the PSR was supplemented
with a more thorough explanation, concluding that, inter alia,
Salinas’ admission of all conduct comprising the offense charged
entitled him to the reduction.
In opposing the reduction, the government argued that, despite
Salinas’ admission to housing 14 illegal aliens during the period
2
of time in question, the PSR recommended a four-level increase in
offense level because Salinas was responsible for harboring a total
of 36 illegal aliens. The government urges that inasmuch as
Salinas failed expressly to admit to all of the relevant conduct
and to the conduct comprising the offense of conviction, and
falsely denied relevant conduct regarding the number of illegal
aliens harbored, he was not entitled to reduction for acceptance of
responsibility.
At sentencing, the court questioned Salinas extensively about
acceptance of responsibility in the context of relevant conduct and
the number of aliens involved, then overruled the government’s
objection. The court stated that it was not entirely convinced
that Salinas had understood the full nature of all that he had pled
guilty to in the case. A review of the colloquy between the court
and Salinas makes that abundantly clear.
II
ANALYSIS
Although we review the sentencing court’s application of the
guidelines de novo,2 we review the district court’s factual
findings, including those that do or do not amount to relevant
conduct, for clear error.3 More to the point, we review the
sentencing court’s determination of acceptance of responsibility
with more deference than is due for a finding made under the
2
United States v. Peterson, 101 Fed. 3d 375, 384 (5th Cir.
1996), cert. denied, 117 S.Ct. 1346 (1997).
3
Id.
3
clearly erroneous standard.4 Section 3E1.1(a) of the Guidelines
provides that if the defendant clearly demonstrates acceptance of
responsibility for his offense, the sentencing court may lower the
offense level by two. A guilty plea prior to trial, coupled with
truthfully admitting the conduct constituting the offense of
conviction and admitting or at least not falsely denying any
additional relevant conduct for which he is accountable constitutes
“significant evidence of acceptance of responsibility.”5
Even though a defendant who falsely denies or frivolously
contests relevant conduct that the court determines to be true has
acted in a manner inconsistent with acceptance of responsibility,6
there is no requirement that the defendant must volunteer or
affirmatively admit relevant conduct beyond the conviction of
offense.7 We have carefully considered the argument of the
government and must concede that facially its points regarding
relevant conduct, the dates of harboring the aliens, and the “body
count” at least technically support the contention that the two-
level decrease should have been denied. On the other hand, the
probation officer who prepared the PSR and the supplement had
considerable interaction with Salinas, observed his demeanor, and
heard his responses to the questions posed to him in light of the
4
United States v. Bermea, 30 Fed. 3d at 1577 (5th Cir.
1994).
5
Section 3E1.1, comment. (n.3); United States v. Patino-
Cardenas, 85 Fed. 3d 1133, 1135 (5th Cir. 1996).
6
Section 3E1.1, comment. (n.1(a)).
7
Id.; Patino-Cardenas, 85 Fed. 3d at 1135.
4
rather technical descriptions of dates and number of aliens
involved, all of which left the probation officer, whose career is
devoted to just such examinations, with the distinct impression
that this obviously undereducated and unsophisticated defendant was
truly accepting responsibility for his acts. He was remorseful for
his participation, and attempted to be wholly forthright and
explain the situation. Even though he may have made comments
inadvertently that could be construed as denying some of the
numbers regarding the relevant conduct, such denials do not smack
of intentional falsification. We are constrained to assign
significance to the conclusion of the probation officer,
particularly when as here it is supported by the defendant’s ready
entry of a plea of guilty without even attempting to gain
sentencing advantage through a plea bargain. Indeed, there is no
indication of intentionally falsely denying or frivolously
contesting relevant conduct.
Similarly and cumulatively, the district court at sentencing
heard and considered the argument of the government in opposition
to crediting Salinas’ acceptance of responsibility, and also
engaged in an extensive colloquy with Salinas during which the
court, like the probation officer before it, had an opportunity to
observe the demeanor of the defendant and judge his sincerity,
candor and understanding. When the deference we owe the sentencing
court under the Bermea standard is applied to the district court’s
observations and conclusions regarding acceptance of
responsibility, particularly in light of the recommendation of the
5
PSR, we will not substitute our remote and detached reading of the
cold record for those of the probation officer and the judge who
had the benefit of direct interaction with the defendant regarding
a matter so individualized and subjective as acceptance of
responsibility. The Guidelines have been written and construed to
leave at least a modicum of discretion to the sentencing court, and
this case presents a good example of instances when a bit of
subjectivity can replace an objectively mechanical application of
the Guidelines without doing violence to their objectives or those
of Congress. This is why we are disinclined to vacate the sentence
imposed here by the district court, the calculation of which
included, inter alia, the two-point reduction for acceptance of
responsibility.
AFFIRMED.
6