FILED
United States Court of Appeals
Tenth Circuit
January 30, 2008
Elisabeth A. Shumaker
Clerk of Court
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-1424
CECILIA LOZANO,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 05-CR-00141-MSK)
Submitted on the Briefs:
Gail Johnson, Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C.,
Denver, Colorado, on the briefs for Defendant-Appellant.
James C. Murphy, Assistant United States Attorney, Denver Colorado (with Troy
A. Edi, United States Attorney, on the brief), for Plaintiff-Appellee.
Before HENRY, Chief Judge, and TACHA and KELLY, Circuit Judges.
HENRY, Chief Judge.
Cecilia Lozano, convicted of two drug counts, but acquitted of a drug
conspiracy charge, essentially argues that, due to the district court’s technical
sentencing error, she was entitled to more consideration for acceptance of
responsibility than she received. Because the court’s technical error “places us in
the zone of speculation and conjecture,” we remand for resentencing so that the
district court may determine the sentence it thinks proper under the guidelines and
the 18 U.S.C. § 3553 factors. United States v. Labastida-Segura, 396 F.3d 1140,
1143 (10th Cir. 2005). We take jurisdiction under 18 U.S.C. § 3742.
I. FACTUAL BACKGROUND
Ms. Lozano was the girlfriend of Jorge Banuelos, the owner of the Alpine
Rose Motel in Denver, Colorado. As part of a thirty-three count superseding
indictment, a grand jury indicted Ms. Lozano on three counts: (1) distribution of
less than five grams of cocaine base and aiding and abetting, when she delivered a
small quantity of crack cocaine to an undercover police officer on August 19,
2004, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. § 2; (2)
distribution of less than five grams of cocaine base and aiding and abetting, when
she delivered a small quantity of crack cocaine to an undercover police officer on
August 30, 2004, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and 18 U.S.C. §
2; (3) conspiracy to distribute more than 50 grams of crack cocaine in connection
with various drug transactions that took place at the Alpine Rose Hotel, in
violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A). In addition to the
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undercover officer’s testimony regarding her purchase of cocaine from Ms.
Lozano, the government presented several witnesses who testified that they
observed Ms. Lozano, acting as a manager of the Alpine Rose Hotel, accept crack
cocaine or monies derived from sales of crack cocaine, in exchange for hotel rent
payments. The trial jury convicted Ms. Lozano of the distribution counts, but
acquitted her of the conspiracy charge. The district court sentenced Ms. Lozano
to concurrent terms of 63 months’ imprisonment.
A. The Presentence Report
The presentence report concluded the total offense level was 26 (based
upon 5.72 grams of crack cocaine) and the criminal history category was III,
yielding an advisory imprisonment range of 78-97 months. Aplt’s App. vol. II, at
392, 404 (Presentence Report). Ms. Lozano objected to the drug quantity, arguing
that trial evidence failed to show the weight of drugs she delivered on August 19,
2004. She maintained the evidence only reflected her drug sale on August 30,
2004, and the total weight on which she should be sentenced was therefore 2.92
grams, not 5.72 grams. She also objected to her criminal history category,
arguing a prior theft conviction should not be counted, and that in any event
category III over-represented the seriousness of her criminal history (because it
included only traffic matters and minor thefts).
Ms. Lozano also objected to the presentence report’s failure to recommend
a two-level reduction for acceptance of responsibility. She argued that although
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she “ultimately went to trial on all charges, her inability to enter a plea of guilty
to the two distribution charges alone was based on the government’s insistence
that she also enter a plea to the conspiracy charge.” Id. at 447 (Addend. to the
Presentence Report). The probation officer declined to change the
recommendations, noting that “the sentencing judge is in a unique position to
evaluate a defendant’s acceptance of responsibility,” and that these were issues
the court must decide. Id. Ms. Lozano subsequently withdrew her challenge to
the quantity of cocaine.
B. The Sentencing Hearing
At sentencing, Ms. Lozano renewed her objection to the presentence
report’s lack of a downward adjustment for acceptance of responsibility. Ms.
Lozano maintained that from the date of arrest through trial, she had admitted to
the sales of crack cocaine to the undercover officer. She argued the government
would not agree to a plea disposition that involved only those charges, so she had
no choice but to proceed to trial.
Ms. Lozano argued that while she did not admit to the distribution charges
at trial, she “didn’t offer any evidence during the trial regarding the
sale/distribution charges” and that the “testimony of Detective Pulliam [the
undercover officer] went largely unchallenged regarding those distribution
charges.” Aplt’s App. vol. I, at 356. For these reasons, she contended she had
accepted responsibility and requested a two-point reduction in offense level.
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The prosecutor disagreed with Ms. Lozano’s interpretation of events and
suggested that while the possibility of a plea was discussed with Ms. Lozano’s
counsel, a firm offer was neither sought by Ms. Lozano nor offered by the
government. The prosecutor suggested that Ms. Lozano had not been as
forthcoming as some defendants, citing a co-defendant who “came in here and
said, ‘Yes, we’re guilty of the substantive counts, not guilty of the conspiracy
count.’ This defendant could have done the same thing and possibly accepted
responsibility. She has not accepted until today responsibility for her conduct.”
Id. at 357. The prosecutor also argued that pre-trial discussions between the
government and defense counsel should not be the determining factor in
evaluating whether the defendant accepted responsibility. Agreeing with the
presentence report, the government opposed any reduction in offense level.
The district court, which presided over the trial, essentially took Ms.
Lozano’s view when it made the following observations:
Here we have a circumstance where the parties apparently
agree that Ms. Lozano really did not contest the
distribution charges. What she contested was the
conspiracy charge.
The Government and the defense in a sense both hedged
their bets. . . .
In this kind of circumstance, it is within the Court’s
discretion as to whether any acceptance of responsibility
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credit should be given. 1
Id. at 373-74. The district court found that “since the decision to go to trial was
in part tactical and strategic, unrelated to the defendant’s state of mind, that one
point is appropriate as an adjustment for acceptance of responsibility.” Id.
Accordingly, the court found the total adjusted offense level to be 25. The
court also found that Ms. Lozano’s criminal history consisted largely of minor
theft convictions and motor vehicles violations related to licensing. All the
convictions were misdemeanors. On this basis, the court concluded that criminal
history category III over-represented the seriousness of Ms. Lozano’s criminal
history and the court found category II to be more accurate. Id. at 376. An
offense level 25 and criminal history category II result in an advisory
imprisonment range of 63-78 months. Id. at 376-77.
The district court considered Ms. Lozano’s request for a below-guidelines
sentence. The district court acknowledged it must give “heavy weight” to the
guidelines, “because they were designed to meet the objectives of [18 U.S.C. §]
3553(a).” Id. at 379. The district court considered Ms. Lozano’s arguments that
she was fearful of the goings on at the Alpine Rose Hotel, and that she
intermittently disassociated herself from some of those operations. The court also
1
In this appeal, the government challenges the district court’s statement at
sentencing that Ms. Lozano “did not contest the distribution charges,” id. at 373,
calling it “inexplicable.” Aple’s Br. at 5, n.1. The government did not protest at
the sentencing hearing, however.
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recognized that Ms. Lozano has had a “hard life” and made some “bad choices,”
and recently had participated in various “self-improvement programs.” Id. at 380.
The district court concluded that none of these warranted a non-guidelines
sentence. The court proceeded to sentence her at the bottom of the guidelines
range, 63 months on each count to be served concurrently, and noted that this
sentence “provides adequate opportunity for Ms. Lozano to participate in the
[Residential Drug Abuse Program] and to earn a sentence reduction if she
successfully completes it.” Id. at 383.
C. Application of § 3E1.1
USSG § 3E1.1(a) states that “[i]f the defendant clearly demonstrates
acceptance of responsibility for his offense, decrease the offense level by 2
levels.” An application note explains:
In rare situations a defendant may clearly demonstrate an acceptance
of responsibility for his criminal conduct even though he exercises his
constitutional right to a trial. This may occur, for example, 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 to his conduct). In each such
instance, however, a determination that a defendant has accepted
responsibility will be based primarily upon pre-trial statements and
conduct.
USSG § 3E1.1 cmt. n.2 (emphasis supplied). The district court relied upon this
note when it reduced her offense level by one level and imposed a 63-month
sentence. Aplt’s App. vol. I, at 373. Although the district court’s application
might be logical, circuit precedent, as discussed below, forbids this approach.
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II. DISCUSSION
On appeal, Ms. Lozano argues that we must reverse the erroneous
application of § 3E1.1, so that the district court may resentence her, which will
likely result in a lower sentence. We agree that the district court’s error was not
harmless, and that we must remand for resentencing.
A. Standard of Review
This court reviews the district court’s legal conclusions de novo and its
factual findings for clear error. United States v. Kristl, 437 F.3d 1050, 1054 (10th
Cir. 2006). Whether USSG § 3E1.1(a) authorizes a one-level reduction for partial
acceptance of responsibility is a legal issue that we examine de novo. United
States v. Carroll, 6 F.3d 735, 741 (11th Cir. 1993). In contrast, whether a
defendant has accepted responsibility is a factual question that we review for
clear error. United States v. Herron, 432 F.3d 1127, 1138 (10th Cir. 2005), cert.
denied, 547 U.S. 1104 (2006). “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.”
United States v. Dazey, 403 F.3d 1147, 1172 (10th Cir. 2005) (internal quotation
marks omitted).
In her opening brief, Ms. Lozano argues that we review the court’s
authority to impose a one-level reduction for acceptance of responsibility for
plain error. To its credit, the government acknowledges that the district court
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erred. Moreover, despite Ms. Lozano’s framing of the standard of review, the
government concedes that we should engage in the less deferential harmless error
analysis because Ms. Lozano preserved her § 3E1.1 argument at the sentencing
hearing. (We appreciate the government’s candor in this regard.) We agree, and
the harmless error standard therefore frames our inquiry.
A non-constitutional error is harmless “[i]f the party defending the sentence
persuades the court of appeals that the district court would have imposed the same
sentence absent the erroneous factor.” See Williams v. United States, 112 S. Ct.
1112, 1120-21 (1992). Thus, to establish harmless error here, “the United States
has the burden to show by a preponderance of the evidence that the district
court’s error did not affect the court’s selection of the sentence imposed.” United
States v. Conlan, 500 F.3d 1167, 1170 (10th Cir. 2007); see F ED . R. C RIM . P.
52(a).
B. The District Court Erred When it Gave a One-level Downward
Adjustment under § 3E1.1
All parties rightly agree that the district court’s one-level downward
adjustment, anchored by § 3E1.1, was an incorrect application of the guidelines.
See United States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003) (holding
“[b]ecause § 3E1.1 is an all or nothing proposition, it was error for the district
court to split the difference by granting a one-level downward adjustment”). We
next consider whether the error was harmless.
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C. Application of Harmless Error
Ms. Lozano argues that this case constitutes one of those unusual
circumstances in which a defendant who has proceeded to trial is nonetheless
eligible for a reduction for acceptance of responsibility under § 3E1.1.
Application note 1 to § 3E1.1 provides that “[i]n determining whether a defendant
qualifies under subsection (a), appropriate considerations include . . . truthfully
admitting the conduct comprising the offense(s) of conviction . . . and . . . the
timeliness of the defendant’s conduct in manifesting the acceptance of
responsibility.”) (Paragraphs (a) and (h), respectively). Ms. Lozano points out
that on the day of her arrest, she voluntarily talked to law enforcement and
admitted her culpability for the two distribution offenses of which she was
convicted. She suggests that although she only contested the conspiracy charge,
she had to proceed to trial on all three counts.
Ms. Lozano argues that the court was also correct to consider her acquittal
on the conspiracy charge. In United States v. Rodriguez, 975 F.2d 999, 1009 (3d
Cir. 1992), the Third Circuit remanded the consolidated cases of two defendants
for resentencing in part so the district court could consider the reasons why they
had refused to plead to the entire indictment, “along with the apparent validity of
those reasons.” The court noted that one defendant had refused to plead guilty to
the full charges against him in order to contest his guilt as to a gun possession
count and that “[h]e was vindicated by his acquittal on that charge.” Id.
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(emphasis added). Ms. Lozano suggests that the district court might very well
apply the two-level downward adjustment on remand.
If Ms. Lozano is correct, her advisory guidelines range would be lowered
from 63-78 months to 57-71 months. Ms. Lozano was sentenced to 63 months.
She maintains that under our precedent, when guideline ranges overlap and the
sentence imposed was at the bottom of applicable range, this court cannot assume
the district court would have imposed the same sentence on remand. Brown, 316
F.3d at 1159 (“Where the sentencing error caused an increase in the applicable
adjustment level, the fact that guideline ranges overlap does not make a plain
error harmless.”) (internal quotation marks omitted). Moreover, the district court
sentenced her at the bottom of the advisory guideline range, which may suggest it
was giving her the lowest sentence possible. See, e.g., Conlan, 500 F.3d at 1170
(“Mr. Conlan was sentenced at the very bottom of his advisory guideline range, a
sign we have taken in the past to indicate that the court may have done something
differently had it not felt mistakenly bound by the guidelines.”);
Labastida-Segura, 396 F.3d at 1143 (same).
Ms. Lozano further observes that Application note 1 to § 3E1.1 also
provides that “post-offense rehabilitative efforts (e.g., counseling or drug
treatment)” are appropriate considerations supporting a finding of acceptance of
responsibility. § 3E1.1, cmt. n.1(g). Ms. Lozano underscores her efforts at
rehabilitation during the period of her pretrial incarceration, which the district
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court also noted.
In response, the government argues that Ms. Lozano would not receive a
lower sentence on remand. First, it argues that the adjustment is not meant to
benefit a “defendant who puts the government to its burden of proof at trial by
denying the essential factual elements of guilt.” USSG § 3E1.1 cmt. n.2. The
government avers that this court has sparingly approved the two-level adjustment
exception to a defendant who proceeds to trial, citing Herron, 432 F.3d at 1139
(holding “we would find an abuse of discretion if the district court had granted
the downward adjustment”).
The government also invokes United States v. Gauvin, 173 F.3d 798, 806
(10th Cir. 1999). There, we upheld a district court’s downward adjustment under
§ 3E1.1 when the defendant admitted to his criminal conduct in testimony at trial
but disputed whether he had the necessary mens rea. The government argues
that, key to the Gauvin result, unlike here, was the defendant’s admission to all
facts pertaining to the crime, disputing only the “the legal element of intent.” Id.
According to the government, we have held in numerous other cases that any
defendant who “attempted at trial to deny a key factual element of the crime . . .
forfeited his claim to an adjustment under § 3E1.1.” United States v.
Salazar-Samaniega, 361 F.3d 1271, 1281 (10th Cir. 2004). And in Brown, we
found the error insufficient to implicate plain error. According to the
government, because Ms. Lozano did not admit factual guilt on the two
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distribution charges on which the jury convicted her, the district court’s error in
awarding the one-level reduction is harmless.
We acknowledge, as the government points out, that when a defendant
proceeds to trial, the circumstances justifying the two-level downward adjustment
under § 3E1.1 are rare. However, we cannot hold the district court’s error in
awarding a one-level reduction to be harmless. We note that here the district
court sentenced Ms. Lozano at the very bottom of the advisory guideline range, a
sign we have taken in the past to indicate that the court may have done something
differently had it not felt mistakenly constrained by the guidelines. See Conlan,
500 F.3d at 1170; United States v. Nickl, 427 F.3d 1286, 1301 (10th Cir. 2005);
Labastida-Segura, 396 F.3d at 1143. Moreover, at the sentencing hearing, the
district court explicitly recounted Ms. Lozano’s pre-trial rehabilitation efforts,
and the likelihood of her participation in the Residential Drug Abuse Program.
Had the district court understood that its choices under § 3E1.1 was either zero
points or two points, it very well may have selected two points. Or, the court
might have reached the same results through application of the § 3553(a) factors.
Given these observations, the fact that “the sentencing judge is in a unique
position to evaluate a defendant’s acceptance of responsibility,” see USSG §
3E1.1 cmt. n.5, and the district court’s empowerment to use its discretion to
fashion a sentence it deems appropriate when it considers § 3553(a)’s factors, we
conclude that our hazarding a guess as to what the district court would do upon
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resentencing absent the erroneous downward adjustment under § 3E1.1 “places us
in the zone of speculation and conjecture.” Labastida-Segura, 396 F.3d at 1143.
Thus, the district court’s error in applying USSG § 3E1.1 was not harmless.
III. CONCLUSION
Accordingly, we VACATE and REMAND for resentencing.
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