IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-21035
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
PABLO SUAREZ, also known as Paul,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
(H-96-CR-84-4)
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September 10, 1997
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
The government appeals the district court’s application of
the Sentencing Guidelines, arguing that the district court
erroneously construed the term “offense” as used in U.S.S.G. §
2L1.1(b)(2) to exclude relevant conduct not charged in the
indictment. The government also argues that Pablo Suarez was not
entitled to a two-level reduction for acceptance of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
responsibility because he limited his responsibility to the
conduct charged in the indictment.
I. RELEVANT CONDUCT
The district court’s application of the Sentencing
Guidelines is reviewed de novo. United States v. Peterson, 101
F.3d 375, 384 (5th Cir. 1996), cert. denied, 117 S. Ct. 1346
(U.S. 1997). The district court’s factual findings, including
what constitutes relevant conduct, is reviewed for clear error.
Id.
The conduct at issue is Suarez’s transportation of illegal
aliens on an occasion not covered or charged in the indictment.
The base offense level for harboring aliens is 9 under §
2L1.1(a). The probation officer concluded that Suarez was
responsible for harboring 21 aliens and therefore increased the
offense level by 2. § 2L1.1(b)(2)(A). The government objected,
arguing that Suarez should have received a 4-level increase
pursuant to § 2L1.1(b)(2)(B) for transporting at least 26 aliens.
According to the government, six of those aliens had been
transported prior to the period charged in the indictment.
The district court apparently construed the specific offense
characteristic under § 2L1.1(b)(2)(A) to include only the offense
charged in the indictment. Consequently, the court found it to
be “relevant conduct in terms of the kind of activity” in which
Suarez had been involved, but the conduct was not conduct with
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which he had been charged in the indictment and, thus, would not
be used to determine the specific offense characteristics.2
The court’s narrow interpretation of “offense” is erroneous.
The Guidelines commentary defines “offense” to mean “the offense
of conviction and all relevant conduct under § 1B1.3 (Relevant
Conduct).” § 1B1.1, comment. (n.1(l)) (emphasis added). The
sentencing court is not limited to conduct from the offense of
conviction. § 1B1.3, comment. (backg’d) (“Conduct that is not
formally charged or is not an element of the offense of
conviction may enter into the determination of the applicable
guideline sentencing range.”); see United States v. Mendoza-
Burciaga, 981 F.2d 192, 198 (5th Cir. 1992) (explaining that a
district court must consider a defendant's involvement in
quantities of drugs not charged in the indictment when the
conduct was part of the same course of conduct as the offense of
conviction). Accordingly, the district court’s narrow
interpretation of the “offense conduct” was error. II.
ACCEPTANCE OF RESPONSIBIITY
2
At sentencing, the court stated:
I mean, it’s relevant, but it’s not relevant to
the charges in these indictments. It’s relevant to the
charges in terms of the kind of activity he has been
involved; yeah, I think it’s relevant in terms of
addressing whether or not this is something that he has
been involved in, but the Court overrules the
objections to the extent that it was not conduct with
which he was charged in the indictment.
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The government also argues that Suarez was not entitled to a
two-level reduction for acceptance of responsibility because he
accepted responsibility only for transporting 15 but not more
than 24 aliens. 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.” § 3E1.1, comment. (n.1(a)). There is no
requirement that Suarez must volunteer or affirmatively admit
relevant conduct beyond the conviction offense. Id.; United
States v. Patino-Cardenas, 85 F.3d 1133, 1135 (5th Cir. 1996).
Given that the defendant truthfully admitted the conduct
comprising the offense of conviction, apparently was never asked
about the conduct at issue here, and had no duty to volunteer
this information, the district court’s decision to award a two-
level reduction for acceptance of responsibility was not an abuse
of its great discretion.
VACATED AND REMANDED.
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