United States v. James

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 7 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
____________

UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) No. 98-1479
) (D.C. No. 98-CR-168-M)
TORRENCE KEITH JAMES, ) (D. Colo.)
)
Defendant-Appellant. )
____________

ORDER AND JUDGMENT*
_____________

Before BALDOCK, BRISCOE, Circuit Judges, and CROW, District Judge.**

_____________

Torrence Keith James appeals his convictions on four counts of distributing

*
This order and judgment is not binding precedent, except under the doctrines of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
citations of orders and judgments; nevertheless, an order and judgment may be cited
under the terms and conditions of 10th Cir. R. 36.3.

The Honorable Sam A. Crow, Senior United States District Judge for the District
**

of Kansas, sitting by designation.
crack cocaine in violation of 21 U.S.C. § 841,1 arguing that the district court

impermissibly struck on its own motion one prospective juror during voir dire and

then improperly instructed the jury regarding their obligation to follow the law as

imparted by the court. James contends that these errors deprived him of his right

to a fair trial. The defendant also appeals the four sixty-five month concurrent

sentences imposed by the district court on each count of conviction. The

defendant contends that the district court erred when it denied his request for a

“downward departure” for acceptance of responsibility pursuant to United States

Sentencing Guidelines § 3E1.1 and that the district court denied his request for

allocution prior to the imposition of sentence. This court exercises jurisdiction

pursuant to 28 U.S.C. § 1291 and affirms.

I. Challenges to the District Court Sua Sponte Striking a Prospective Juror and
the District Court’s Instructions to the Jury

During voir dire, the district court sua sponte excused prospective juror

William A. Altonin, a professor emeritus from Denver University. On appeal, the

defendant argues that the district court committed reversible error when it sua

1
At trial, the government introduced evidence of controlled buys from the
defendant. The telephone conversations arranging the controlled buys from James were
tape recorded. Law enforcement officers took photographs of James as he sold crack
cocaine to a cooperating witness. The cooperating witness who actually purchased the
crack cocaine from James testified at trial. In this appeal, the defendant does not
challenge the sufficiency of the evidence.

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sponte struck prospective juror Altonin from the venire. Concomitant with his

challenge to striking Altonin, the defendant argues that the district court

incorrectly informed the jurors that it is their duty to follow the law as it

instructed. The defendant contends that this admonition was a structural error

mandating reversal. The defendant argues that the jury always has the power to

acquit and that the district court’s instructions trampled on the independence of the

jury, making it impossible for the jury to render a fair decision in this case.

The government responds, arguing that the district court’s decision to strike

Altonin as a prospective juror was entirely appropriate under the circumstances

and that the district court’s instructions regarding the jury’s duty to follow the law

as given to it by the court were absolutely correct.

Factual Summary

After discussing the nature of the case and many of the fundamental

principles of criminal law--the presumption of innocence, the jury’s duty to

consider only the evidence admitted and the government’s burden of proof--with

the entire jury panel, the district court directed its questions to a prospective juror

named John S. Cowan, an attorney and solo practitioner. In response to the

district court’s inquiry, Cowan explained the nature of his civil and criminal

practice. The district court then posited the following question: [C]ould we agree

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on this, although you’re an experienced trial lawyer, when it comes time for me to

give the instructions in the case and I instruct the jury, you’re ready to accept my

view of the law as given in the instructions, even though, if it should, may conflict

with your view?” Cowan responded “Yes.” (Rec. vol. 3, 35). The following is an

excerpt of the voir dire of prospective juror Altonin that immediately followed:

THE COURT: Okay. Are any others of you lawyers? Mr. Altonin?

MR. ALTONIN: Yes. I taught criminal law at D.U. about 25 times. I’m

not a lawyer--

THE COURT: But you’ve taught law?

MR. ALTONIN: Yes.

THE COURT: And are you teaching now?

MR. ALTONIN: No, I’m a professor emeritus for D.U.

THE COURT: And when was it that you taught criminal law?

MR. ALTONIN: From 1966 until I think 1987.

THE COURT: So when you say 25 times, you mean 25 periods,

academic periods?

MR. ALTONIN: Sometimes I taught more than once a year.

THE COURT: Yeah. And includes a procedure course?

MR. ALTONIN: No, I did not teach procedure.

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THE COURT: Would you be--were you teaching common law, criminal

law?

MR. ALTONIN: We relied heavily on codes.

THE COURT: And particularly Colorado?

MR. ALTONIN: No.

THE COURT: Federal?

MR. ALTONIN: Largely, the model penal code.

THE COURT: Okay, Well, I’ll have to ask you the same question I

asked our practicing attorney, whether you’re willing to

accept the law from me as I give it in instructions?

MR. ALTONIN: I don’t know.

THE COURT: And why do you say that?

MR. ALTONIN: Something may come up that I’d feel very strongly

about.

THE COURT: Like what?

MR. ALTONIN: I can’t imagine now.

THE COURT: Well, you know it’s your duty--

MR. ALTONIN: My inclination is to follow the judge’s instructions.

THE COURT: Which of course is what the duty of a juror is.

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 MR. ALTONIN: Yes. I’ve got one qualm there.

THE COURT: Which is?

MR. ALTONIN: That a jury always has the power to acquit.

THE COURT: Well, that’s right.

MR. ALTONIN: Not withstanding the evidence.

THE COURT: Well, the jury, in your view, can take the law unto itself?

MR. ALTONIN: Yes, for the purpose of acquittal in a criminal case.

THE COURT: I’m going to excuse you. You’re excused.

(Rec. vol. 3, 35-37).

Neither the defendant nor the Government lodged any objection of

any kind regarding the dismissal of prospective juror Altonin. The district court

then provided the following explanation for removing Mr. Altonin as a

prospective juror:

Now, we were on the subject of experience with the law. I just excused the
professor because he expressed a view that the jury can disregard the law.
I'm surprised to hear that's being taught, if it is being taught. But at any rate,
that's not the law. As I have explained patiently and carefully, the jury has
to accept the law as it is, and it's up to the jury to decide on the evidence,
you know, whether the evidence meets this high standard of proof, and can
certainly decide on an acquittal, as he said, if the evidence doesn't persuade
or convince you beyond a reasonable doubt. But the jury can't make up the
law, and that's the little exchange that we had there, and I'm sure you
followed along with that, but I wanted to make it plain why it was that I
excused this teacher.

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(Rec. vol. 3, 38). No objection to this explanation for striking Altonin and these

instructions regarding the jury’s obligation to follow the law was advanced by

either party.

Standard of Review

“It is well settled that the district court has broad discretion in

determining how to handle allegations of juror bias.” United States v. Bornfield,

145 F.3d 1123, 1132 (10th Cir. 1998), cert. denied, 2000 WL 48814 (2000). "'The

trial judge is vested with a wide discretion for determining the competency of

jurors and his judgment will not be interfered with except in the case of an abuse

of discretion.'" United States v. Contreras, 108 F.3d 1255, 1265 (10th Cir.)

(quoting United States v. Porth, 426 F.2d 519, 523 (10th Cir.) (internal quotation

marks omitted), cert. denied, 400 U.S. 824, 91 S. Ct. 47, 27 L. Ed. 2d 53 (1970)),

cert. denied, 522 U.S. 839. See United States v. Torres, 128 F.3d 38, 42 (1st Cir.

1997) (trial judge has the authority and responsibility, either sua sponte or upon

counsel's motion, to dismiss prospective jurors for cause), cert. denied, 523 U.S.

1065 (1998).

Because James did not object to the district court’s sua sponte

removal of prospective juror Altonin or to the district court’s instructions to the

jury, we review for plain error. See United States v. Hughes, 191 F.3d 1317, 1322

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(10th Cir. 1999). To establish plain error, James “‘must show: (1) an error, (2)

that it is plain, which means clear or obvious under current law, and (3) that

affect[s] substantial rights.’” Id. (quoting United States v. Fabiano, 169 F.3d

1299, 1302 (10th Cir. 1999)).

Juror Qualifications

A criminal defendant is guaranteed a trial "by an impartial jury." U.S.

Const. amend. VI. "One touchstone of a fair trial is an impartial trier of fact--'a

jury capable and willing to decide the case solely on the evidence before it.’"

McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (quoting

Smith v. Phillips, 455 U.S. 209, 217 (1982)). A juror should be excused for cause

if a particular belief will "prevent or substantially impair the performance of his

duties as a juror in accordance with his instructions and his oath." Wainwright v.

Witt, 469 U.S. 412, 424 (1985). See United States v. Simmons, 961 F.2d 183, 184

(11th Cir. 1992) (“The constitutional standard for juror impartiality is whether the

juror ‘can lay aside his opinion and render a verdict based on the evidence

presented in court.’") (quoting Patton v. Yount, 467 U.S. 1025, 1037 n. 12 (1984)),

cert. denied, 507 U.S. 989 (1993).

A defendant’s right to an impartial jury does not include a right to a jury

composed of persons who will disregard the district court’s instructions. “[T]here

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is no right to jury nullification.” Crease v. McKune, 189 F.3d 1188, 1194 (10th

Cir. 1999) (citing United States v. Thomas, 116 F.3d 606, 615 (2d Cir. 1997)

(stating that "the power of juries to 'nullify' or exercise a power of lenity is just

that--a power; it is by no means a right or something that a judge should encourage

or permit if it is within his authority to prevent") and United States v. Powell, 955

F.2d 1206, 1213 (9th Cir. 1992) (defendants not entitled to jury nullification

instructions)).

To the extent the defendant's appeal seeks to require courts to facilitate jury
nullification, the law is clear: a criminal defendant is not entitled to have
the jury instructed that it can, despite finding the defendant guilty beyond a
reasonable doubt, disregard the law. See United States v. Grismore, 546
F.2d 844, 849 (10th Cir. 1976). The jury's role is to apply the law to the
facts of the case.

United States v. Rith, 164 F.3d 1323, 1337 (10th Cir. 1999), cert. denied, 120 S.

Ct. 78 (1999). Cf. United States v. Mason, 85 F.3d 471, 473 (10th Cir. 1996)

(“While we recognize that a jury in a criminal case has the practical power to

render a verdict at odds with the evidence or the law, a jury does not have the

lawful power to reject stipulated facts. Such a power, if exercised, would conflict

with the jurors' sworn duty to apply the law to the facts, regardless of outcome.”).

Analysis

In light of his responses to questions during voir dire, the district

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court did not abuse its discretion or commit plain error in sua sponte dismissing

prospective juror Altonin. A person who is either unwilling or unable to follow

the court’s instructions is not qualified to be a juror. Nor did the district court

commit any error when it informed the jurors that it is their obligation to follow

the law as it instructs. In short, the defendant was not deprived of his right to a

fair trial.

II. Challenges to Sentencing

The defendant contends that the district court erroneously denied his

request for a two level “downward departure” for acceptance of responsibility

under U.S.S.G. § 3E1.1. The defendant contends that he only went to trial to

preserve his Singleton2 argument, that he has expressed remorse for his crimes and

has in fact accepted responsibility. The defendant notes that he provided

information to the government and met the requirements of the “safety valve”

provision, 18 U.S.C. § 3553(f) yet did not receive a two level reduction for

2
See United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998)
(prosecuting attorney violated 18 U.S.C. § 201(c)(2) when he offered leniency to a
co-defendant in exchange for truthful testimony), vacated pending rehearing en
banc, 144 F.3d 1361 (10th Cir. 1998), on rehearing en banc, United States v.
Singleton, 165 F.3d 1297, 1298 (10th Cir. 1999) (“We now hold 18 U.S.C. §
201(c)(2) does not apply to the United States or an Assistant United States
Attorney functioning within the official scope of the office.”), cert. denied, ---
U.S. ----, 119 S. Ct. 2371 (1999).
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acceptance of responsibility, implying that there is no rational explanation for this

result. The defendant also contends that the denial of his request for the two level

“departure” is effectively a punishment for exercising his Sixth Amendment right

to trial by jury. Finally, the defendant contends that the district court denied his

request for allocution on the issue of acceptance of responsibility and that such an

error requires remand for resentencing.

The government responds to each of the defendant’s allegations,

arguing that the defendant was not entitled to a reduction in his sentence for

acceptance of responsibility, that the denial of acceptance of responsibility is not a

punishment, that the defendant’s qualification for the safety valve provision did

not automatically entitle him to the two level reduction for acceptance of

responsibility, and that the defendant was in fact afforded the opportunity to speak

to the court prior to the imposition of sentence.

Two Level Downward Adjustment

Although the defendant’s brief framed this issue in terms of the

district court's denial of his request for a “downward departure” for acceptance of

responsibility, using the nomenclature of the sentencing guidelines, the defendant

was in reality seeking a two level downward adjustment in his base offense level

for his acceptance of responsibility, not a downward departure from the sentencing

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guidelines. Although a district court may downwardly depart from the applicable

guideline range if the defendant demonstrates remorse to an exceptional degree,

see United States v. Fagan, 162 F.3d 1280, 1284-85 (10th Cir. 1998) (“[R]emorse

is a factor taken into account by the Sentencing Guidelines under acceptance of

responsibility. If a factor is already taken into account by the Sentencing

Guidelines, it is a permissible factor for departure if it is present to some

exceptional degree. (Citations omitted). Because remorse is not a prohibited

factor, but a factor already considered in the Sentencing Guidelines, a sentencing

court may depart downward if it finds that remorse is present to an exceptional

degree.”), the defendant in this case simply argues that the district court should

have granted him a two point reduction in his base offense level for acceptance of

responsibility under § 3E1.1. See United States v. Gauvin, 173 F.3d 798, 805

(10th Cir. 1999) (“If ‘the defendant clearly demonstrates acceptance of

responsibility for his offense,’ the district court grants a two offense-level

downward adjustment.”) (quoting U.S.S.G. § 3E1.1(a)) (emphasis added), cert.

denied, 120 S. Ct. 250 (1999). Consequently, and as the defendant’s counsel

conceded during oral argument, the issue on appeal is not whether the district

court committed reversible error in denying the defendant’s request for a

“downward departure, but instead whether the district court erroneously denied the

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defendant’s request for a downward adjustment of two levels for acceptance of

responsibility under U.S.S.G. § 3E1.1(a).

Standard of Review

“Determination of acceptance of responsibility is a question of fact

reviewed under a clearly erroneous standard.” Gauvin, 173 F.3d at 805 (citing

United States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir. 1997), cert denied, 522

U.S. 1063, (1998)). "The sentencing judge is in a unique position to evaluate a

defendant's acceptance of responsibility. For this reason, the determination of the

sentencing judge is entitled to great deference on review." U.S.S.G. § 3E1.1,

Application Note 5.

Acceptance of Responsibility

“The defendant bears the burden of establishing entitlement to a

reduction under § 3E1.1.” United States v. Bindley, 157 F.3d 1235, 1240 (10th

Cir. 1998) (citing United States v. Nelson, 54 F.3d 1540, 1544 (10th Cir. 1995)),

cert. denied, 119 S. Ct. 1086 (1999). “To receive a reduction, the defendant must

show 'recognition and affirmative acceptance of personal responsibility for his

criminal conduct.' United States v. McAlpine, 32 F.3d 484, 489 (10th Cir.)

(quoting U.S.S.G. § 3E1.1(a)), cert. denied, 513 U.S. 1031 (1994). A "defendant

who falsely denies, or frivolously contests, relevant conduct that the court

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determines to be true has acted in a manner inconsistent with acceptance of

responsibility." U.S.S.G. § 3E1.1, Application Note 1(a).

The Sentencing Commission recognizes that the acceptance of

responsibility guideline is "not intended to apply to a defendant that 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." U.S.S.G.

§ 3E1.1, Application Note 2. The commentary to § 3E1.1 continues, stating that

"[c]onviction by trial, however, does not automatically preclude a defendant from

consideration for such a reduction.... [A] determination that a defendant [who

exercised his constitutional right to a trial] has accepted responsibility will be

based primarily upon pre-trial statements and conduct." Id. See Gauvin, 173 F.3d

at 805; United States v. Moudy, 132 F.3d 618, 621 (10th Cir.), cert. denied, 523

U.S. 1036 (1998); United States v. Allen, 129 F.3d 1159, 1166-67 (10th Cir.

1997).

"In 'rare situations' a defendant may deserve the reduction for

acceptance of responsibility even though he goes to trial." United States v.

Portillo-Valenzuela, 20 F.3d 393, 394 (10th Cir.), cert. denied, 513 U.S. 886

(1994). As an example of an exception to the general rule against receiving a

downward adjustment for acceptance of responsibility following conviction by

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trial, "this may occur...where a defendant goes to trial to assert and preserve issues

that do not relate to factual guilt (e.g., to make a constitutional challenge to a

statute or a challenge to the applicability of a statute of his conduct)." U.S.S.G. §

3E1.1, Application Note 2. As another example, “the entrapment defense is one of

those ‘rare situations’ contemplated by the Sentencing Guidelines in which a

defendant may go to trial and still receive an acceptance of responsibility

reduction.” United States v. Garcia, 182 F.3d 1165, 1173 (10th Cir. 1999) (“We

hold only that raising the entrapment defense does not necessarily foreclose the

possibility of receiving a reduction for acceptance of responsibility, but that does

not mean that the simple assertion of the entrapment defense coupled with

acknowledgment of the underlying criminal activity automatically entitles a

defendant to a two-point acceptance of responsibility reduction.”). Similarly, a

defendant who proceeds to trial only to contest the legal element of intent may

still, in rare instances receive, a reduction for acceptance of responsibility.

Gauvin, 173 F.3d at 806. In contrast, "[p]leading not guilty and requiring the

government to prove guilt at trial demonstrate[s] denial of responsibility,

regardless of how easily the government can prove guilt." Portillo-Valenzuela, 20

F.3d at 394-95. "A defendant is not entitled to an adjustment for acceptance of

responsibility merely because he admits to wrongdoing." United States v.

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McMahon, 91 F.3d 1394, 1397 (10th Cir.), cert. denied, 120 S. Ct. 535 (1999).

Singleton

Prior to trial, the defendant filed a motion to stay the trial pending

final resolution of the Singleton case by the Tenth Circuit. That motion was

denied by the district court as it believed that its own prior decision in United

States v. Dunlap, 17 F. Supp. 2d 1183 (D. Colo. 1998) (agreements by government

with cooperating witnesses does not violate the anti-gratuity statute) correctly

stated the law. During trial the defendant renewed his Singleton motion, arguing

that permitting the prosecution to introduce the testimony of witnesses cooperating

with the government in exchange for the potential of a reduced sentence or other

benefits would constitute a violation of 18 U.S.C. § 201.

Prior to sentencing, James expressed remorse for his crimes, took

responsibility for his acts and informed the district court that he had gone to trial

for the purposes of creating and preserving his record on the Singleton issue. The

district court rejected the defendant’s request for a downward adjustment for

acceptance of responsibility.

James’ contention that he proceeded to trial solely to preserve his

Singleton challenge is belied by the fact he denied guilt at trial, put the

government to the burden of proving the crimes charged, challenged the evidence

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offered and presented a defense suggesting that he was involved in illicit

gambling, not drug trafficking, and that the recorded conversations received into

evidence were not related to drug deals but instead to gambling transactions.

The district court’s conclusion that the defendant in this case did not

go to trial solely to preserve his Singleton challenge and that he is not entitled to a

two level adjustment for acceptance of responsibility is not clearly erroneous. The

defendant formally denied factual guilt by pleading not guilty, forcing the

government to prove his factual guilt at trial. The defendant’s pleas and insistence

on proceeding to trial "brought into question whether he manifested a true remorse

for his criminal conduct." United States v. Ochoa-Fabian, 935 F.2d 1139, 1143

(10th Cir. 1991), cert. denied, 503 U.S. 961 (1992). Contrary to the defendant’s

argument in his reply brief, nothing precluded him from seeking to enter

conditional pleas to preserve his Singleton challenge. In any event, the district

court was in a much better position to evaluate the defendant’s purported reasons

for going to trial. The district court’s denial of the defendant’s request for an

adjustment for acceptance of responsibility was not clearly erroneous.

Unconstitutional Penalty

The defendant’s contention that the denial of his request for a two

level reduction for acceptance of responsibility is an unconstitutional penalty for

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exercising his constitutional right to proceed to trial is an argument that has been

repeatedly rejected by the Tenth Circuit:

[The defendant] also argues that the Constitution prevents the court from
penalizing him for his exercise of the right to trial. However, denying the
reduction for acceptance of responsibility is not a penalty for exercising any
rights. The reduction is simply a reward for those who take full
responsibility. Therefore the court may constitutionally deny the reduction
if the defendant's exercise of a constitutional right is inconsistent with
acceptance of responsibility. See United States v. Gordon, 4 F.3d 1567,
1573 (10th Cir. 1993) (holding that denying reduction for acceptance of
responsibility is not an unconstitutional penalty for exercising Fifth
Amendment rights); United States v. Jones, 997 F.2d 1475, 1477 (D.C. Cir.
1993) (explaining that withholding leniency does not penalize defendant for
exercising right to trial), cert. denied, 510 U.S. 1065, 114 S. Ct. 741, 126 L.
Ed. 2d 704 (1994); United States v. Rogers, 921 F.2d 975, 982-83 (10th
Cir.) (stating that denying downward adjustment does not penalize exercise
of Fifth Amendment rights), cert. denied, 498 U.S. 839, 111 S. Ct. 113, 112
L. Ed. 2d 83 (1990); cf. Corbitt v. New Jersey, 439 U.S. 212, 223, 99 S. Ct.
492, 499, 58 L. Ed. 2d 466 (1978) (holding that state may constitutionally
reduce sentences for those who plead guilty).

Portillo-Valenzuela, 20 F.3d at 395.

The Safety Valve Provision

The “safety valve” provision, 18 U.S.C. § 3553(f), provides:

Limitation on applicability of statutory minimums in certain cases.--
Notwithstanding any other provision of law, in the case of an offense under
section 401, 404, or 406 of the Controlled Substances Act ( 21 U.S.C. 841,
844, 846) or section 1010 or 1013 of the Controlled Substances Import and
Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant
to guidelines promulgated by the United States Sentencing Commission
under section 994 of title 28 without regard to any statutory minimum
sentence, if the court finds at sentencing, after the Government has been

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 afforded the opportunity to make a recommendation, 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;

(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 section 408 of the Controlled Substances Act; 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 adopts verbatim 18 U.S.C. § 3553(f).

Section 3553(f) was enacted as a "safety valve" to permit courts to sentence
less culpable defendants to sentences under the guidelines, instead of
imposing mandatory minimum sentences. As the legislative history of the
section states, without such a safety valve, for "the very offenders who most
warrant proportionally lower sentences--offenders that by guideline
definitions are the least culpable--mandatory minimums generally operate to
block the sentence from reflecting mitigating factors." H.R.Rep. No.
103-460, 103d Cong., 2d Sess., 1994 WL 107571 (1994). This would have
the unfortunate effect that the "least culpable offenders may receive the

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 same sentences as their relatively more culpable counterparts." Id.

United States v. Acosta-Olivas, 71 F.3d 375, 378 (10th Cir. 1995).

“To override a mandatory minimum sentence, a defendant must prove that

he meets all five requirements of the safety valve provision.” United States v.

Gonzalez-Montoya, 161 F.3d 643, 651 (10th Cir. 1998), cert. denied, 119 S. Ct.

1284 (1999). See United States v. Verners, 103 F.3d 108, 110 (10th Cir. 1996)

("Although we have not previously ruled in this circuit on the burden as applied to

U.S.S.G. § 5C1.2, we now follow the reasoning set out by other circuits and hold

that the defendant has the burden of proving, by a preponderance of the evidence,

the applicability of this section."). In regard to the fifth requirement of the safety

valve provision, the Tenth Circuit has held that § 3553(f)(5) requires a defendant

to tell the government all that he knows about the offense of conviction and the

relevant conduct, including the identities and participation of others in order to

qualify for relief from the statutory mandatory minimum sentence. Acosta-Olivas,

71 F.3d at 377.

“[T]he safety valve provision and acceptance of responsibility under

U.S.S.G. 3E1.1(a) are not coterminous.” Gonzalez-Montoya, 161 F.3d at 652.

“Conviction by a jury does not foreclose relief under the safety valve provision.”

Id. (citation omitted). Conversely, the commentary to § 3E1.1 makes clear that a

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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" is not entitled to a two level reduction for acceptance of

responsibility. Consequently, the district court’s finding that the defendant

qualified for the safety valve provision did not automatically entitle him to a

downward adjustment for acceptance of responsibility.

Allocution

The defendant contends that the district court treated his request for a two

level departure as a purely legal question and denied his request to address the

court with regard to that issue during sentencing. The defendant contends that this

ruling violated Fed. R. Crim. P. 32(a)(1)(C) and his right of allocution. The

government responds, arguing that the defendant’s counsel was provided an

opportunity to object to the PSIR and that the district court did not impose

sentence until ruling on those objections. In any event, the government contends

that the court actually provided the defendant with an opportunity to address the

court prior to imposing sentence.

“[B]efore imposing sentence the court must ‘address the defendant

personally and determine if the defendant wishes to make a statement and to

present any information in mitigation of the sentence.’" United States v. Archer,

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70 F.3d 1149, 1151 (10th Cir. 1995) (quoting Fed. R. Crim. P. 32(a)(1)(C)). "The

right to allocution is an integral part of the sentencing process which if not fully

afforded to the defendant requires a reversal of the sentence imposed." United

States v. Muniz, 1 F.3d 1018, 1025 (10th Cir.) (citing Green v. United States, 365

U.S. 301, 304 (1961)), cert. denied, 510 U.S. 1002 (1993).

We have reviewed the transcript of the sentencing hearing and are satisfied

that the defendant was specifically afforded an opportunity to address the district

court prior to imposition of sentence. In fact, prior to the pronouncement of

sentence the defendant personally addressed the district court and offered these

comments regarding his reasons for going to trial and why he should be entitled to

a downward adjustment of two levels for acceptance of responsibility:

And the only reason I did go to trial was to preserve my issues on
Singleton and to keep them on record, Your Honor. I never tried to shirk
the responsibility. I never tried to run. When the police came to get me, we
came peacefully. There was no problem, waived extradition to get back to
take care of this, Your Honor.

(Rec. vol. 5, 13).

Conclusion

The district court did not err in sua sponte striking prospective juror

Altonin, nor did it err by informing the jurors that they are required to follow the

law as it instructs. The district court did not err in refusing to grant the

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defendant’s request for a two-point reduction in his base offense level for

acceptance of responsibility, nor did it deny the defendant his right of allocution..

AFFIRMED.

Entered for the Court

Sam A. Crow
District Judge

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