UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-2133
UNITED STATES,
Appellee,
v.
JOHN JAIRO MUNOZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
Before
Selya, Boudin and Stahl,
Circuit Judges.
Sara Rapport on brief for appellant.
Sheldon Whitehouse, United States Attorney, Margaret E. Curran,
Assistant United States Attorney, and Stephanie S. Browne, Assistant
United States Attorney, on brief for appellee.
April 26, 1996
Per Curiam. Defendant-appellant John Jairo Munoz Estrada
pled guilty to illegal reenty after deportation, in violation
of 8 U.S.C. 1326. He appeals from his sentence on the sole
ground that the district court erred in denying him a one-
level reduction pursuant to U.S.S.G. 3E1.1(b)(2) for
"timely notifying authorities of his intention to enter a
plea of guilty." We vacate his sentence and remand for
resentencing.
"A defendant bears the burden of proving entitlement to
decreases in the offense level, including downward
adjustments for acceptance of responsibility. Once the
sentencing court has ruled against him on such an issue, the
defendant faces an uphill battle." United States v. Morillo,
8 F.3d 864, 871 (1st Cir. 1993). "The clearly erroneous
standard . . . guides appellate review of district court
determinations under section 3E1.1(b)." Id.
"The timeliness of the defendant's acceptance of
responsibility is . . . context specific." U.S.S.G. 3E1.1,
comment. (n.6). To qualify for the additional one-level
reduction under 3E1.1(b)(2), the defendant "must have
notified authorities of his intention to enter a plea of
guilty at a sufficiently early point in the process so that
the government may avoid preparing for trial and the court
may schedule its calendar efficiently." Id.
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In denying the one-level reduction for timeliness, the
district court focused on the court's ability to "allocate
its resources efficiently," 3E1.1(b)(2), rather than on the
government's expenditure of resources in preparing for trial.
(The government concedes in its brief that "[t]here was no
direct evidence on the record that the prosecution had
actually prepared for trial -- outside of preparing responses
to defense counsel's boilerplate motions.")1 Specifically,
1
the court emphasized that Munoz did not plead guilty until
after the case was placed on the court's trial calendar.
Wasting judicial resources is, of course, a valid ground
for denying the extra one-level reduction. Here, however,
the case was placed on the court's trial calendar on March
22, 1995. Munoz did not actually enter his plea until April
5, 1995. The language of 3E1.1(b)(2) refers to the date
that the defendant "notif[ies] authorities of his intention
to enter a plea of guilty," not the date that the plea is
entered. In this case, notification occurred on March 16,
1995, the date on which the parties filed their executed plea
agreement with the court. Therefore, notification occurred
before the district court placed the case on the trial
1We do not suggest that work by prosecutors in responding
1
to pretrial motions cannot, in many circumstances, constitute
"preparing for trial" within the purview of 3E1.1(b)(2).
We merely point out that, here, the government gave the
district court very little to work with, and, in all events,
the court did not premise its denial of the added reduction
on the government's preparatory work.
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calendar. It was clear error for the district court to rule
that Munoz's acceptance of responsibility was untimely on the
ground that it occurred after the case was placed on the
court's trial calendar.
The sentence is vacated and the case is remanded for
resentencing. At the new sentencing hearing, either side may
proffer relevant information concerning the government's work
in preparing the case up to the time of the plea agreement.
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