UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 00-50737
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALI LEAL-MENDOZA, RODNEY GALINDO,
Defendants - Appellants.
Appeals from the United States District Court
for the Western District of Texas
January 29, 2002
Before JONES, SMITH, AND EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Ali Leal-Mendoza and Rodney Galindo challenge two aspects of their sentences: the failure
of the district court to award a three-level, instead of two-level, reduction for “acceptance of
responsibility” under U.S.S.G. § 3E1.1, and the failure of the district court to reduce their sentences
because they served only “minor” or “minimal” roles in the offense under U.S.S.G. § 3B1.2.
After a high-speed chase, Texas state troopers, local deputy sheriffs, and the United States
Border Patrol stopped a truck driven by Leal and Galindo. The officers found 704 kilograms of
packaged marijuana inside the truck. A Border Patrol agent placed the two men under arrest and
moved them to a federal facility, where they spent the night in a cell. The next morning, DEA agents
transferred Leal and Galindo to another location and interviewed them. According to the DEA
agents, both Leal and Galindo freely and willingly gave statements. They confessed that a man named
“Chief” paid them $5,000 each to transport marijuana from a truck stop in Sierra Blanca, Texas to
Odessa, Texas. They described in their interviews the way in which “Chief” recruited them at a party
and his advice on escaping detection during the drug run.
Leal and Galindo filed motions to suppress evidence, asserting violations of the Fourth and
Fifth Amendments. They later waived their right to a jury trial. After the district court denied their
suppression motions at a hearing, Leal and Galindo stipulated to all of the facts necessary to support
their guilt, and the district court found them guilty as charged in the indictment. At sentencing, the
district court reduced Leal and Galindo’s sentences by two levels for acceptance of responsibility
under U.S.S.G. § 3E1.1(a), but declined to reduce their sentence an additional level under U.S.S.G.
§ 3E1.1(b). The court also rejected the contention that Leal and Galindo played only “minimal” or
“minor” roles in the offense under U.S.S.G. § 3B1.2 and accordingly refused to reduce their
sentences.
We review a sentencing judge’s determination on acceptance of responsibility under a
standard variously described as “clearly erroneous,” “without foundation,” or “great deference.”
United States v. Chapa-Garza, 62 F.3d 118, 122 (5th Cir. 1995). This standard requires even more
deference than a “pure” clearly erroneous standard. Id..
The sentencing judge, visiting the Western District of Texas from the Eastern District of
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Louisiana, reluctantly awarded a two-point reduction of the sentencing level for “acceptance of
responsibility.” The judge followed what he believed to be the rule of the Western District of Texas,
which purportedly awards the two-level reduction in cases where the defendant moves to suppress
evidence but otherwise does not challenge the facts establishing his guilt. The judge made clear that,
but for the Western District’s policy, he would not have awarded even two levels. The judge declined
to award the third-level reduction because of his reluctance on whether even the two-level decrease
was justified. In rejecting the additional reduction, he said: “But the fact of the matter is that to me
that doesn’t make a difference because, frankly, if I weren’t applying the rules of this Court, they
wouldn’t get 3 point – they wouldn’t get a 2-point reduction; they’d get zero. The facts here, to me,
don’t justify even a 2-point reduction. But the policy of the court is to give it. I’m going to give
them the 2-point reduction.”
We reject the proposition that a sentencing judge’s reluctance in awarding the two-point
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a) can have any bearing on the
independent inquiry of whether to award another level reduction under U.S.S.G. § 3E1.1(b). Section
3E1.1 provides:
(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease
the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined
prior to the operation of subsection (a) is level 16 or greater, and the defendant has assisted
authorities in the investigation or prosecution of his own misconduct by taking one or more
of the following steps:
(1) timely providing complete information to the government concerning his own involvement
in the offense; or
(2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and permitting the court to allocate its resources
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efficiently,
decrease the offense level by 1 additional level.
U.S.S.G. § 3E1.1. To qualify for the additional reduction in § 3E1.1(b), the defendant must
meet three criteria: (1) he must qualify for the two-level reduction under subsection (a), (2) the
offense level prior to the operation of section (a) must be 16 or higher, and (3) the defendant must
either “timely provide complete information to the government concerning his own involvement in
the offense” or timely enter a guilty plea. United States v. Tello, 9 F.3d 1119, 1124 - 25 (5th Cir.
1993).
Whether a defendant qualifies for the two-level reduction in subsection (a) is an all or nothing
proposition: once the district court decides that a defendant is entitled to the subsection (a) reduction,
the only inquiries remaining under subsection (b) are the last two prongs of the test. In other words,
a district court cannot find that a defendant “accepted responsibility” for the purposes of subsection
(a) but did not “accept responsibility” for the purposes of the first prong of the test under subsection
(b). We explicitly held as much in United States v. Tello, 9 F.3d at 1127 - 29. In Tello, the district
court awarded the two-level reduction under subsection (a) despite the defendant’s obstruction of
justice. But because the defendant had obstruct ed justice, the court concluded that he had not
sufficiently accepted responsibility for the full three-level reduction under subsection (b). We
reversed, explaining that district courts may not adopt “internally inconsistent position[s]” in
sentencing under § 3E1.1. Id. at 1128. Whether a defendant obstructed justice was relevant to the
determination under subsection (a). But once the district court determined that the obstruction did
not prevent the reduction under subsection (a), it was not free to revisit the obstruction issue again
under subsection (b).
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Here, similarly, the fact that the defendants required the government to go to trial on the
suppression motion might have been relevant under subsection (a) in determining whether they had
“accepted responsibility.” In United States v. Maldonado, 42 F.3d 906 (5th Cir. 1995), the district
court denied a sentencing reduction under subsection (a) on facts nearly identical to those here: the
defendant put the government to trial on a suppression motion, but waived his right to a jury trial and
otherwise stipulated to all of the relevant facts. We upheld the court’s decision. Had the government
appealed the reduction under subsection (a) in this case, we might very well have reversed on the
strength of Maldonado. But the government did not appeal the reduction under subsection (a).
Having determined (however reluctantly) that Leal and Galindo qualified for the two-point reduction
under subsection (a), the district court was not entitled to revisit that decision in considering
subsection (b). As such, the only remaining relevant questions were (1) whether the offense level
was greater than 16 and (2) whether Leal and Galindo either timely provided complete information
to the authorities or timely entered a guilty plea.
Neither Leal nor Galindo entered a guilty plea. United States v. Gonzales, 19 F.3d 982, 984
(5th Cir. 1994) (holding that a bench trial on stipulated facts in lieu of a conditional guilty plea does
not constitute a “guilty plea” for the purposes of the sentencing guidelines). But each defendant
timely provided complete information to the authorities. They each freely and willingly gave
statements to the DEA at their first interviews, the morning after their arrests. Aside from the fact
of the car chase itself, apparently the only facts used at trial were those provided by the defendants.
As such, because the offense level for each defendant exceeded 16, they were entitled to the full
three-level reduction under § 3E1.1(b)(1). We VACATE the defendants’ sentences and REMAND
for re-sentencing in light of this opinion.
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Leal and Galindo also challenge the district court’s determination under U.S.S.G. § 3B1.2 that
they played more than a “minor” or “minimal” role. We review the district court’s decision on this
point under the clearly erroneous standard. United States v. Giraldi, 86 F.3d 1368, 1378 (5th Cir.
1996). Given that Leal and Galindo were paid a substantial sum and moved a large quantity of drugs,
the district court did not clearly err in finding that they were more than “minor” participants.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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