F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 28 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4098
JESUS ROBERTO GAMA-
BASTIDAS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 96-CR-192-02-J)
____________________
Submitted on the briefs:
Benjamin A. Hamilton, Salt Lake City, Utah, for Defendant-Appellant.
Scott M. Matheson, Jr., United States Attorney, and Brooke C. Wells, Assistant
United States Attorney, District of Utah, Salt Lake City, Utah, for Plaintiff-
Appellee.
_____________________
Before BRORBY, McKAY, and BRISCOE, Circuit Judges.
_____________________
McKAY, Circuit Judge.
_____________________
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
Pursuant to a written plea agreement, Defendant Mr. Jesus Roberto Gama-
Bastidas entered a conditional guilty plea to possession of a controlled substance
with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).
Defendant reserved the right to appeal the district court’s denial of his motion to
suppress evidence seized as a result of the protective search of his person and the
search of the vehicle in which he was traveling as a passenger. See Fed. R. Crim.
P. 11(a)(2). Defendant now appeals his conviction, arguing that the district court
erred in denying the motion to suppress. Defendant asks us to suppress the
evidence seized as a result of the allegedly unconstitutional searches and seizures.
The government contends that Defendant has no standing to contest the searches,
and it argues that the stop, searches, and seizures were constitutional. Defendant
also appeals his sixty-month sentence, challenging the court’s refusal to apply
section 5C1.2 of the United States Sentencing Guidelines.
I.
Our review of a district court’s denial of a motion to suppress is governed
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by well-established standards of law. We accept the district court's factual
findings unless those findings are clearly erroneous, and we consider the totality
of the circumstances and view the evidence in a light most favorable to the
government. 1 See United States v. Gutierrez-Daniez, 131 F.3d 939, 940-41 (10th
Cir. 1997), cert. denied, ___U.S.___, 118 S. Ct. 1334 (1998). The questions of
standing and the reasonableness of a search or seizure are questions of law which
we review de novo. See id. at 941; United States v. Shareef, 100 F.3d 1491, 1499
(10th Cir. 1996).
On August 26, 1996, the Utah Highway Patrol executed a felony stop on a
red Dodge Neon with Arizona license plates at the request of the Salt Lake City
FBI Violent Crimes Task Force. R., Supp. Vol. I at 120, 127. This stop led to the
discovery of cocaine in the Dodge Neon and to the arrests of the passenger,
Defendant, and the driver, co-defendant Mr. Arnulfo Sosa-Garcia. 2
The FBI began investigating Defendant’s brother, co-defendant Mr. Manuel
1
Defendant argues that the we must review the entire record on the motion
to dismiss because the district court failed to make sufficient factual findings.
When ruling on a motion to suppress, a district court must “state its essential
findings on the record.” Fed. R. Crim. P. 12(e). After reviewing the record, we
are persuaded that the district court’s factual findings, although not particularly
detailed, encompass the essential facts serving as the foundation for its
conclusion that the FBI had probable cause to stop and search. See United States
v. Toro-Pelaez, 107 F.3d 819, 824 (10th Cir.), cert. denied, ___U.S.___, 118 S.
Ct. 129 (1997).
2
Co-defendant Mr. Manuel Gama was subsequently arrested as a result of
this stop and the seizure of cocaine.
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Gama [Mr. Gama], and the Seranos street gang in late March 1996. The FBI
suspected that Mr. Gama and members of the gang were involved in drug
distribution activities in Salt Lake City, Utah. In August 1996, several
confidential informants told the FBI that Mr. Gama was planning to transport a
large quantity of cocaine from Arizona for distribution in Salt Lake City. One
informant, Informant Five, and a cooperating witness were able to provide
particularly detailed information to the FBI because Mr. Gama resided in their
home during that time. Informant Five told the FBI that Mr. Gama went to Las
Vegas, Nevada, to meet a brother and that he intended to return to Salt Lake City
with cocaine. 3 Informant Five and the cooperating witness then notified the FBI
that Mr. Gama, claiming to possess four or five kilograms of cocaine, had
returned to Salt Lake City in a red Dodge Neon with Arizona license plates on
August 24, 1996, and had taken the cocaine to an undisclosed hotel or motel to
sell the cocaine. Mr. Gama was accompanied from Las Vegas by Defendant and
Mr. Sosa-Garcia. R., Supp. Vol. 1 at 37-38, 95-97.
Between 9:30 p.m. and 10:00 p.m. on August 26, 1996, Informant Five
notified an FBI agent that Defendant and another person intended to leave Utah
and return to Las Vegas with the unsold cocaine in the red Dodge Neon. That
3
The record reveals that at some point after Mr. Gama’s arrest, the FBI
independently corroborated that Mr. Gama traveled to Las Vegas by airplane on
August 23, 1996.
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FBI agent traveled to the apartment complex where Mr. Gama, Informant Five,
and the cooperating witness resided, and where Informant Five said the vehicle
would be located. Upon arriving at the complex, the FBI agent observed in the
parking lot several Hispanic males, including Mr. Gama, standing around the red
Dodge Neon with Arizona plates. While the FBI agent began surveilling the
Dodge Neon parked outside the apartment, he also was communicating
telephonically with Informant Five and the cooperating witness to ascertain
additional information. Informant Five told the FBI agent that about one
kilogram of cocaine was stashed inside the Dodge Neon, and he advised the FBI
agent that one of the occupants of the vehicle may have a firearm. Informant Five
then notified the agent that the Dodge Neon would follow a tan or white van when
it left the apartment complex and that it would proceed on 7200 South Street to
Interstate 15 southbound.
Shortly thereafter, the FBI agent confirmed Informant Five’s reports. The
FBI agent and several other FBI surveillance officers observed the same Dodge
Neon with Arizona plates leave the apartment complex following a tan or white
van, proceed on 7200 South, and enter Interstate 15 southbound. Traveling south
on Interstate 15 in unmarked cars, the FBI agents continued to follow the Dodge
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Neon in an attempt to corroborate that the vehicle was heading to Las Vegas. 4
When the agents reached Utah County, they contacted the highway patrol to
request assistance should they make a stop. Near Springville, Utah, after the
agents had been following the same car for approximately one hour and believed
that it was en route to Las Vegas, the FBI requested that the Utah Highway Patrol
stop the vehicle. R., Supp. Vol. 1 at 47.
At approximately 11:45 p.m., because the FBI agents had information from
Informant Five that the occupants of the car may be armed, the Utah Highway
Patrol executed a felony stop of the red Dodge Neon. The Highway Patrol
ordered Defendant and Mr. Sosa-Garcia out of the vehicle and instructed them to
lay face down on the pavement. The FBI officers subsequently approached and
handcuffed both men, conducted a pat-down search for weapons, and moved the
two men to the rear of the Utah Highway Patrol vehicles. 5 During the initial
detention and pat-down, at least one of the officers had a firearm drawn and
4
Interstate 15 is the major corridor, and the most direct route, between Salt
Lake City and Las Vegas.
5
According to the record, an FBI agent removed a file from Defendant’s
pocket during the protective pat-down, considering it dangerous because it could
be used as a knife. Also, a small object fell from Defendant’s pants’ pocket when
he stood up after the pat-down. The FBI later determined that object to be a small
amount of cocaine in a plastic bag.
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directed toward the suspects. 6 Several of the FBI agents then began a warrantless
search of the vehicle’s trunk and interior. Upon finding several plastic bags
containing approximately one-half to one kilogram of cocaine in the trunk,
weighing scales in the trunk, and a small plastic bag with cocaine residue in the
glove-box, the FBI arrested Defendant and Mr. Sosa-Garcia and impounded the
vehicle. An additional two kilograms of cocaine were discovered in a hidden
compartment in the trunk when the vehicle was searched at the FBI impound lot
on August 28, 1996. 7
The bulk of the evidence that Defendant seeks to suppress was discovered
during the FBI agents’ searches of the car. Defendant maintains that such
evidence should have been suppressed because it was seized in violation of his
Fourth Amendment rights. However, because Defendant was a passenger in the
car, we must address the threshold issue of whether Defendant has standing to
challenge the searches of the car. 8
The record indicates that approximately five FBI agents and two Utah
6
Highway Patrolmen were present during the stop.
7
The record also reveals that some firearm ammunition for a handgun was
located in the vehicle during the August 28 search.
8
The government raised this issue in its written response to the motion to
suppress and during the suppression hearing. The record, however, indicates that
the court did not rule on Defendant’s standing. Because the record is not virtually
barren of the facts necessary to decide the standing inquiry, we resolve this issue.
See Combs v. United States, 408 U.S. 224, 227 (1972); United States v.
Skowronski, 827 F.2d 1414, 1417 n.2 (10th Cir. 1987).
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“Fourth Amendment rights are personal and may not be asserted
vicariously.” Skowronski, 827 F.2d at 1418 (citing Rakas v. Illinois, 439 U.S.
128, 133-34 (1978)). Suppression of evidence is an appropriate remedy only
when the search violates a person’s constitutional rights. “It is not enough that a
person is aggrieved only by the introduction of damaging evidence derived from
the search.” Id. The proponent of a motion to suppress has “the burden of
adducing facts at the suppression hearing indicating that his own rights were
violated by the challenged search.” Id. at 1417.
In determining whether a search of an object has infringed upon a person’s
Fourth Amendment rights, the court must consider two factors: (1) whether the
defendant has manifested a subjective expectation of privacy in the object of the
challenged search, and (2) whether that expectation of privacy was objectively
reasonable. See California v. Ciraolo, 476 U.S. 207, 211 (1986); United States v.
Arango, 912 F.2d 441, 445 (10th Cir. 1990), cert. denied, 499 U.S. 924 (1991).
In Rakas, 439 U.S. at 148-49, the Supreme Court held that a passenger who
asserts neither a possessory nor a property interest in a vehicle would not
normally have a legitimate expectation of privacy in the vehicle. Accord United
States v. Eylicio-Montoya, 70 F.3d 1158, 1162 (10th Cir. 1995); United States v.
Martinez, 983 F.2d 968, 973 (10th Cir. 1992), cert. denied, 507 U.S. 1056 and
508 U.S. 922 (1993); Arango, 912 F.3d at 445-46; United States v. Erwin, 875
-8-
F.2d 268, 271 (10th Cir. 1989). A passenger generally does not establish standing
to contest the search of a vehicle merely because he was charged with a
possessory crime. See United States v. Eylicio-Montoya, 18 F.3d 845, 850 (10th
Cir. 1994). However, a defendant may establish a reasonable expectation of
privacy by presenting evidence of some lawful control or possession of the
vehicle. Id. at 851.
In this case, Defendant has not demonstrated that he had any legitimate
possessory interest in or any lawful control over the car. The red Dodge Neon in
which Defendant was traveling was owned by Enterprise Rent-A-Car and rented
to Quintero Lazaro in Chandler, Arizona. Neither Defendant nor the driver was
named as a renter or authorized driver in the rental car agreement. See United
States v. Obregon, 748 F.2d 1371, 1374-75 (10th Cir. 1984). Further, Defendant
does not assert, either at the suppression hearing or on appeal, any privacy
interest in the vehicle or in the contents of the car. See Eylicio-Montoya, 70 F.3d
at 1162; Martinez, 983 F.2d at 973-74; Skowronski, 827 F.2d at 1418. Defendant
has not presented any evidence sufficient to meet his burden of proving that the
challenged search of the vehicle and the subsequent seizure of cocaine violated
his Fourth Amendment rights. We conclude that Defendant does not have
standing to challenge the searches of the Dodge Neon. Therefore, we do not
examine the constitutionality of the warrantless searches of the vehicle.
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Although Defendant cannot challenge the search of the vehicle, he can
contest the constitutionality of his own search and seizure. See Eylicio-Montoya,
70 F.3d at 1162-64. Defendant contends that we should grant the motion to
suppress because the evidence seized was the “fruit” of four allegedly unlawful
searches or seizures: the stop of the vehicle; the pat-down search of his person;
his initial detention; and his arrest.
It is undisputed that “stopping an automobile and detaining its occupants
constitute[s] a ‘seizure’ within the meaning of [the Fourth] Amendmen[t].”
Delaware v. Prouse, 440 U.S. 648, 653 (1979). A warrantless seizure of an
automobile and its occupants may be reasonable if predicated on probable cause
and exigent circumstances. See id. at 654 & n.10; United States v. Swingler, 758
F.2d 477, 487-88 (10th Cir. 1985). Prior to the stop, the FBI obtained
information from Informant Five and the cooperating witness concerning the
transportation of cocaine in and out of Utah by Mr. Gama, his brother, and an
associate in a specific vehicle with a known license plate number. The FBI
investigated these events and visually corroborated other tips provided by
Informant Five and the confidential informant. The FBI identified the red Dodge
Neon with Arizona plates at the precise location indicated by Informant Five.
The FBI observed the same Dodge Neon depart that location, follow a van to
Interstate 15, and head south toward Las Vegas on the Interstate. These
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observations confirmed the reliability of the informants’ reports. Further, judging
the credibility of the witnesses, determining the weight to be afforded the
testimony, and drawing reasonable inferences and conclusions from the testimony
are within the province of the district court. See Toro-Pelaez, 107 F.3d at 824.
Despite Defendant’s argument that the FBI agents’ testimony and reports were
inconsistent with a Utah Highway Patrol video, the district court did not err in
implicitly determining that the FBI agents’ testimony was credible. See id. at
825. Based on the totality of the circumstances, we conclude that the FBI had
probable cause to suspect that contraband was present in the vehicle. Therefore,
the vehicle contained the instrumentality of a crime sufficient to justify a stop. 9
Defendant also contends that the pat-down search and his initial detention
were unreasonable and tainted the evidence seized as a result of the pat-down and
during the search of the vehicle. A pat-down protective search or seizure is
permissible if the police reasonably believe that a suspect is presently armed and
dangerous. See Adams v. Williams, 407 U.S. 143, 146 (1972); Terry, 392 U.S. at
9
We note that the stop in this case is also justified by the lower standard of
reasonable suspicion. A stop of a vehicle may be constitutional without probable
cause if the officers had a reasonable suspicion, grounded in specific and
articulable facts, that the suspect has committed, is committing, or is about to
commit a crime. See United States v. Hensley, 469 U.S. 221, 226-27, 234 (1985);
Terry v. Ohio, 392 U.S. 1, 21 & n.18 (1968). The facts in the record substantiate
the officers’ reasonable suspicion of wrongdoing sufficient to justify an
investigative stop. See Arango, 912 F.2d at 446-47.
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27; United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993). Police officers
are authorized to take reasonable steps necessary to secure their safety and
maintain the status quo during a stop. See Perdue, 8 F.3d at 1462. However, the
use of firearms, handcuffs, and other forceful techniques are justified only by
probable cause or when “the circumstances reasonably warrant such measures.”
Id. at 1462-63; Shareef, 100 F.3d at 1502-04.
The Utah Highway Patrol and FBI agents conducted a felony stop in
response to information from Informant Five that at least one of the occupants of
the red Dodge Neon may have been armed. The FBI agents had no reason to
disbelieve information provided by an informant whose previous tips were
generally reliable and corroborated. Further, the agents “need not be absolutely
certain that the individual is armed” before taking protective measures. Terry,
392 U.S. at 27. Although no firearm was ever found on the occupants of the
vehicle or in the vehicle, 10 the officers were justified in utilizing measures to
protect themselves and the public. The felony stop procedures were predicated on
a combination of the reasonable belief that the occupants of the vehicle may be
armed, the probable cause to believe that the occupants were transporting cocaine,
10
We note that the validity of a pat-down search does not depend on the
officers’ finding a weapon. Cf. Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)
(stating “mere fact that the suspect is later acquitted of the offense for which he is
arrested is irrelevant to the validity of the arrest”).
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and the fact that the stop was executed on an automobile, during the night, on the
side of a highway. Compare Terry, 392 U.S. at 27-30 (holding that officer’s
belief that men were armed and acting suspiciously was reasonable), and Shareef,
100 F.3d at 1502-06 (concluding that forceful precautionary measures were
reasonable), and Perdue, 8 F.3d at 1463 (determining that officers were justified
in displaying some force), with United States v. Melendez-Garcia, 28 F.3d 1046,
1051-53 (10th Cir. 1994) (holding that felony stop procedures were not
reasonable where officers had no information that occupants were armed and stop
was executed in daylight). We conclude that the pat-down search and the initial
detention of Defendant were reasonable and did not impair his Fourth Amendment
rights.
Finally, Defendant’s warrantless arrest was constitutional if, at the moment
the arrest was made, the FBI agents had probable cause to arrest. Probable cause
to arrest depends “upon whether, at the moment the arrest was made . . . the facts
and circumstances within [the arresting officers’] knowledge and of which they
had reasonably trustworthy information were sufficient to warrant a prudent
[person] in believing that the [suspect] had committed or was committing an
offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964); see Swingler, 758 F.2d at 486-
87. We review the record to determine if the arrest in this case was justified
under the requisite constitutional standard.
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The record indicates that although the FBI agents did not find a gun on
Defendant or in the vehicle, they verified virtually all other information given to
the agents by Informant Five and the cooperating witness. The facts in the record
that we have previously described gave the FBI agents reasonably trustworthy
information sufficient to warrant a prudent person in believing that the occupants
of the red Dodge Neon were committing an offense. See Swingler, 758 F.2d at
488-89; see also Carroll v. United States, 267 U.S. 132, 156-62 (1925) (holding
warrantless arrest was justified by reasonable or probable cause to believe that
occupants of car were illegally transporting contraband). Further, once the FBI
discovered approximately one-half to one kilogram of cocaine in the trunk of the
red Dodge Neon, cocaine residue in a plastic bag in the vehicle’s glove-box, and a
small amount of cocaine that apparently fell out of Defendant’s pocket, abundant
probable cause existed to arrest Defendant. See Adams, 407 U.S. at 148; Eylicio-
Montoya, 18 F.3d at 849; Swingler, 758 F.2d at 487-88.
Because our review of the record discloses no reversible error in the district
court’s denial of Defendant’s motion to suppress, we AFFIRM Defendant’s
conviction.
II.
Defendant also challenges the legality of his sentence, alleging that the
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district court erroneously refused to apply section 5C1.2 of the sentencing
guidelines. He argues that he should have received a lesser sentence 11 allowed
under 18 U.S.C. § 3553(f) and the corresponding guideline section 5C1.2 for
“relatively less culpable offenders.” United States v. Acosta-Olivas, 71 F.3d 375,
379 (10th Cir. 1995). 12 We review de novo the district court’s interpretation of
the sentencing guidelines, and we review the court’s factual findings for clear
error. See Verners, 103 F.3d at 110.
Section 5C1.2 provides that a court shall impose a guideline sentence,
instead of the mandatory minimum sentence prescribed by statute, if the court
finds at sentencing that:
(1) the defendant does not have more than 1 criminal history point, as
determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence
or possess a firearm or other dangerous weapon (or induce another
participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any
person;
11
Defendant was sentenced to a mandatory minimum 60-months
imprisonment. If the statutory minimum sentence did not apply, he would be
subject to a sentence of 46 to 57 months. R., Vol. VII at 10.
12
Defendant also asserts that he was entitled to a lesser sentence for
mitigating circumstances pursuant to 18 U.S.C. § 3553(b). Because Defendant
does not tell us what mitigating circumstance exists, we do not address this claim.
Cf. United States v. Verners, 103 F.3d 108, 111 (10th Cir. 1996) (confirming that
a “district court has no discretion to depart from a statutory minimum sentence for
section 3553(b) mitigating circumstances”).
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(4) the defendant was not an organizer, leader, manager, or
supervisor of others in the offense, as determined under the
sentencing guidelines and was not engaged in a continuing criminal
enterprise, as defined in 21 U.S.C. § 848; and
(5) not later than the time of the sentencing hearing, the defendant
has truthfully provided to the Government all information and
evidence the defendant has concerning the offense or offenses that
were part of the same course of conduct or of a common scheme or
plan, but the fact that the defendant has no relevant or useful other
information to provide or that the Government is already aware of the
information shall not preclude a determination by the court that the
defendant has complied with this requirement.
U.S.S.G. § 5C1.2.; 18 U.S.C. § 3553(f). Defendant bears the burden of proving
the applicability of this section. Verners, 103 F.3d at 110.
We are primarily concerned with the court’s treatment of subsection 5,
which requires Defendant to truthfully disclose to the government all information
relevant to his offense. See Acosta-Olivas, 71 F.3d at 379. The question before
us is whether the court made a finding that Defendant did not meet the
requirements of section 5C1.2(5) because he had not truthfully provided to the
government all information relating to his offense, or whether the court
determined that its role was not to evaluate the truthfulness and completeness of
the information provided by Defendant and therefore it did not apply section
5C1.2.
At sentencing, the district court made several statements concerning section
5C1.2. The court stated that it “is not in the information gathering business in the
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sense in which it’s used in Subsection 5 of the applicable guideline.” R., Vol. VII
at 16. The court then determined that in consideration of the totality of the
circumstances, including “the professed contest by the United States and the last
minute effort to furnish information indirectly to the United States,” the court was
“not well equipped with all the information furnished to make a finding under
Subsection 5.” Id. The court also stated that “[b]ecause of the nature of the
information [and] the inability of the Court to make such a finding, [the court
will] have to find Subsection 5 was not met.” Id. In response to defense
counsel’s question whether the court intended to make a finding that Defendant
has not complied with subsection 5, the court responded, “No. . . . I made a
finding the information that you have furnished me is insufficient to justify an
affirmative finding. It’s a question of evidence as to the completeness and as to
the truthfulness.” Id. at 18.
Based on our review of the record, we conclude that the court
misunderstood its role in determining the applicability of section 5C1.2. The
court essentially stated that it would not find that Defendant did not comply with
subsection 5. Because the court was not in the business of evaluating the
information provided by Defendant, it could not determine whether Defendant had
satisfied subsection 5. Section 5C1.2, however, requires that “the court
determine[] whether a defendant has complied with its provisions, including
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subsection 5.” Acosta-Olivas, 71 F.3d at 379. In order to assess whether a
defendant has satisfied subsection 5, a court must determine the quality and
completeness of all information furnished to the government by Defendant. See
United States v. White, 119 F.3d 70, 72-74 (1st Cir. 1997) (noting that district
court properly made specific and detailed findings as to the truthfulness of
information and defendant’s eligibility under section 5C1.2). It is precisely
because the record in this case contains contested evidence about the truthfulness
and completeness of the information provided by Defendant to the government
that the district court is better equipped than we are to make the requisite
findings. 13 See Fed. R. Crim. P. 32(c)(1); Acosta-Olivas, 71 F.3d at 379-80;
United States v. Rodriguez, 69 F.3d 136, 143-44 (7th Cir. 1995). We conclude
that the court’s failure to evaluate and make sufficient findings on the information
provided by Defendant in relation to subsection 5 was erroneous. After
Defendant claimed that he had satisfied the requirements of section 5C1.2, the
court failed to properly analyze whether Defendant was eligible for such relief.
Additionally, while the court stated that it was unable to make a finding
under section 5C1.2, it seemed to find that Defendant had not satisfied the criteria
13
The record shows that Defendant contends he truthfully provided all
relevant information to the government in his written plea agreement, at his
change of plea hearing, in his testimony at his co-defendants’ trial, and in the
Judge’s chambers prior to the sentencing hearing. The government insists that
much of the information provided by Defendant was false or incomplete.
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of section 5C1.2 because some of the information provided by Defendant was “in
a last ditch effort” before sentencing. 14 This finding is clearly erroneous. Section
5C1.2(5) requires a defendant to provide truthful information to the government
“not later than the time of the sentencing hearing.” A defendant, therefore, may
present information relating to subsection 5 to the government before the
sentencing hearing. See United States v. Ortiz, 136 F.3d 882, 884 (2d Cir. 1997),
cert. denied, ___U.S.___, 118 S. Ct. 1104 (1998); United States v. Ramirez, 94
F.3d 1095, 1100 (7th Cir. 1996); United States v. Real-Hernandez, 90 F.3d 356,
361 (9th Cir. 1996); United States v. Romo, 81 F.3d 84, 86 (8th Cir. 1996). We
believe that Defendant’s attempt to furnish information to the court and the
government in the Judge’s chambers prior to the sentencing hearing is not “too
late.” R., Vol. VII at 6. Whether this information is truthful and, in combination
with the other information that Defendant professes is truthful and complete,
satisfies subsection 5 is a factual finding for the district court.
We therefore REMAND to the district court with instructions to vacate the
sentence and resentence Defendant in accordance with this opinion and the record
evidence. The district court is directed to evaluate the information presented by
Defendant and the government’s recommendation to determine whether Defendant
14
Because Defendant’s proffer technically occurred before the sentencing
hearing began, we do not address whether a proffer of information occurring “at”
or “during” a sentencing hearing is timely under section 5C1.2(5).
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satisfied the requirements of section 5C1.2, and subsection 5 in particular. 15
AFFIRMED in part and REMANDED for resentencing.
15
The record indicates that the government and Defendant agree that the
first and third criteria were satisfied. See R., Vol. VII at 12-14. The record also
reveals a statement by the court negating the relevance of a government argument
that the fourth criteria was not satisfied. See R., Vol. VII at 12-13. The court did
not discuss the second requirement. Obviously, our directions do not preclude the
court from making any other findings it deems appropriate.
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