F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS APR 15 1997
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Nos. 95-5194
v. (D.C. No. 93-CR-001-02-C)
(NOK)
LOROAN VERNERS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
that oral argument would not materially assist the determination of this appeal.
See F ED . R. A PP . P. 34(a); 10th C IR . R. 34.1.9. Therefore, the case is ordered
submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Laroan Verners was convicted of possession of cocaine base with intent to
distribute, establishment of manufacturing operations, aiding and abetting his co-
defendant Guessinia Verners in the commission of those crimes, and use of a
firearm during and in relation to a federal drug trafficking crime, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A), 856(a)(1), and 18 U.S.C. §§ 2, and 924(c)(1).
He was sentenced to a term of imprisonment of 375 months followed by a 10 year
period of supervised release. On direct appeal we affirmed all convictions except
that of aiding and abetting Guessinia Verners in the possession of cocaine with
intent to distribute because we reversed her conviction on that count. United
States v. Verners, 53 F.3d 291, 298 (10th Cir. 1995). On remand, Mr. Verners
received the same sentence. He appeals his resentencing, and we affirm.
Mr. Verners raises two issues on appeal. First, he suggests that the district
court should have reduced his sentence under USSG § 3E1.1 for acceptance of
responsibility for his crime. Second, he contends the district court failed to state
in open court the reasons for its imposition of sentence in violation of 18 U.S.C. §
3553(c). We will consider each of these issues in turn.
Acceptance of Responsibility Reduction in Sentence
Section 3E1.1 of the Sentencing Guidelines provides that “[i]f the
defendant clearly demonstrates acceptance of responsibility for his offense, [the
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court shall] decrease the offense level by 2 levels.” USSG § 3E1.1(a). The
commentary following section 3E1.1(a) elucidates that a “voluntary surrender to
authorities promptly after commission of the offense” is an appropriate
consideration in determining whether subsection (a) has been satisfied. U. S.
S ENTENCING G UIDELINES M ANUAL § 3E1.1, comment. (n.1(d)) (1995). Mr.
Verners argues that because his presentence investigation report stated he had
voluntarily surrendered to the authorities, the district court erred by failing to
grant him a 2 level sentence reduction.
“The district court has broad discretion to determine whether to award [a]
reduction [in sentence under USSG § 3E1.1], and we will not disturb the court’s
decision absent clearly erroneous findings.” United States v. Gassaway, 81 F.3d
920, 922 (10th Cir. 1996). “A defendant bears the burden of establishing his
entitlement to a . . . reduction under § 3E1.1." Id.
While it is true the presentence report mentioned that Mr. Verners
voluntarily surrendered to the authorities, the report did not recommend a
sentence reduction based on that fact. Instead, the report states that “the
defendant does not qualify for acceptance of responsibility.” Aplt’s Brief at doc.
C. It appears from the record before this court that Mr. Verners failed to object to
that portion of the presentence report. There are no written motions for sentence
reduction based on acceptance of responsibility, and Mr. Verners did not take the
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opportunity to raise the issue in his resentencing hearing. Part of Mr. Verners’
burden in obtaining a sentence reduction includes requesting that reduction.
There can be no error in failing to grant a sentence reduction that was not
requested. 1
Failure to State Basis for Sentencing Range in Open Court
Section 3553 of title 18 requires that when the court imposes a sentence of
greater than twenty four months, as it did here, “[t]he court, at the time of
sentencing, shall state in open court the reason for its imposition of the particular
sentence.” 18 U.S.C. § 3553(c). In addition, if the sentencing guidelines provide
a sentencing range, the court must state “the reason for imposing a sentence at a
particular point within the range.” Id. § 3553(c)(1). Mr. Verners contends the
district court failed on resentencing to state the reason for sentencing him in the
middle of the applicable sentencing range.
As the Government points out, although the district court did not state its
reasons for Mr. Verner’s sentencing range at resentencing, the court expressly
referred back to Mr. Verner’s original sentencing where the court did state its
1
Even if Mr. Verners had requested a sentence reduction pursuant to USSG
§ 3E1.1, there was ample evidence on which to base a denial of a reduction.
Although Mr. Verners did surrender voluntarily, he pled not guilty to the offenses
for which he was charged and required the Government to prove all elements of
its case. See USSG § 3E1.1(a), comment. (n.2).
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reasons. With no objection from counsel, the judge proceeded to pronounce the
sentence. It is clear from the record that the two sentencing pronouncements,
taken together, fully articulate the reasons for Mr. Verner’s sentencing. The
complete record satisfies the requirements of section 3553(c), and we find no
error.
For the foregoing reasons, we AFFIRM.
SUBMITTED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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