Case: 12-16167 Date Filed: 03/21/2014 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16167
Non-Argument Calendar
________________________
D.C. Docket No. 0:12-cr-60110-JIC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK HENRY JOSEPH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 21, 2014)
Before PRYOR, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Case: 12-16167 Date Filed: 03/21/2014 Page: 2 of 6
Patrick Henry Joseph appeals his 210-month imprisonment sentence,
imposed after he pled guilty to two counts of possession with intent to distribute
28 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(iii), and one count of possession with intent to distribute a detectable
amount of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). We affirm.
Joseph sold crack cocaine to a confidential informant and an undercover
officer during several controlled narcotics operations from January to April 2012.
He initially pled not guilty to charges from the sales, and a trial date was set.
Joseph moved twice for continuances, and the district court granted the motions,
subsequently setting trial for September 19, 2012. While in pretrial detention,
Joseph engaged in numerous recorded telephone calls. In the calls, he instructed
several women to sell the remainder of his drug supply and to collect his
outstanding drug debts. Joseph told the women to place the proceeds in his
telephone and commissary accounts.
One week before trial, the government disclosed it intended to use the
recorded conversations to rebut Joseph’s affirmative defense of entrapment. On
September 18, 2012, the day before trial, Joseph plead guilty to all charges. At
sentencing, the government refused to recommend a U.S.S.G. § 3E1.1(b) one-point
reduction for acceptance of responsibility. Joseph objected to the exclusion of the
one-point reduction; the district court overruled his objection.
2
Case: 12-16167 Date Filed: 03/21/2014 Page: 3 of 6
On appeal, Joseph argues the district court erred at sentencing when it
declined to apply a one-level reduction to his total offense level for acceptance of
responsibility under § 3E1.1(b), based on its conclusion that it lacked authority to
review the government’s decision not to file a § 3E1.1(b) motion. He relies on an
amendment to § 3E1.1 that took effect on November 1, 2013. The denial of an
acceptance-of-responsibility reduction generally is reviewed for clear error.
United States v. Knight, 562 F.3d 1314, 1322 (11th Cir. 2009). We review the
district court’s legal conclusions regarding the scope of its authority under the
Sentencing Guidelines de novo. See United States v. Moore, 541 F.3d 1323, 1326
(11th Cir. 2008) (reviewing de novo the district court’s conclusions about the
scope of its authority in 18 U.S.C. § 3582(c)(2) proceedings).
A defendant is entitled to a one-level reduction in his offense level under §
3E1.1(b), if the government files a motion “stating that the defendant has assisted
authorities in the investigation or prosecution of his own misconduct by timely
notifying authorities of his intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and permitting the government and the
court to allocate their resources efficiently.” U.S.S.G. § 3E1.1(b). “Because the
Government is in the best position to determine whether the defendant has assisted
authorities in a manner that avoids preparing for trial, [the reduction] may only be
3
Case: 12-16167 Date Filed: 03/21/2014 Page: 4 of 6
granted upon a formal motion by the Government at the time of sentencing.” Id. at
cmt., n.6.
The United States Sentencing Commission has amended the commentary to
§ 3E1.1(b) by adding language providing the government “should not withhold [a
§ 3E1.1(b) motion] based on interests not identified in § 3E1.1, such as whether the
defendant agrees to waive his or her right to appeal.” Id. The amended language
took effect on November 1, 2013, during the pendency of this appeal.
In reviewing a district court’s application of the Guidelines, we apply the
version of the Guidelines in effect on the date of the defendant’s sentencing
hearing. United States v. Jerchower, 631 F.3d 1181, 1184 (11th Cir. 2011). When
subsequent amendments clarify the Guidelines, however, we consider those
clarifying amendments on direct appeal and give them retroactive effect. Id. We
apply such amendments retroactively, because they “provide persuasive evidence
of how the Sentencing Commission originally envisioned application of the
relevant guideline.” Id. (citation and internal quotation marks omitted).
“Substantive amendments to the Guidelines, on the other hand, are not applied
retroactively on direct appeal.” Id.
When assessing whether an amendment to the Sentencing Guidelines is
substantive or clarifying, we consider whether the amendment alters the text of the
Guideline or alters only the commentary. Id. at 1185. An amendment that alters
4
Case: 12-16167 Date Filed: 03/21/2014 Page: 5 of 6
only the commentary suggests a clarification. Id. Nevertheless, an amendment to
the commentary may be substantive “if it contradicts or alters preexisting
commentary instead of merely supplementing commentary carried over from an
earlier version of the Guidelines.” Id. We also consider whether the Commission
has described an amendment as clarifying, whether the Commission included the
amendment in the list of retroactive amendments in § 1B1.10(c), and whether an
amendment overturns circuit precedent. Id.
Because the amendment took effect after Joseph’s sentencing hearing, and
because he relies on the amendment in this appeal, we must decide whether the
amendment clarifies § 3E1.1(b) or substantively changes it. See Jerchower, 631
F.3d at 1184-85. Regardless of whether the amendment is substantive or
clarifying, Joseph’s argument fails. If the amendment is clarifying and applies
retroactively in this case, then we conclude that the government based its refusal to
withhold a § 3E1.1(b) motion on interests that are identified in § 3E1.1(b), namely,
the untimeliness of Joseph’s plea. See U.S.S.G. § 3E1.1(b) & cmt. n.6.
Considering the extent of the government’s trial preparation, the burden on the
court’s ability to allocate its resources efficiently, and defense counsel’s
opportunity to investigate the case, the district court did not clearly err in
determining that Joseph’s notification of his intent to plead guilty “came too late.”
R6 at 7. Specifically, Joseph waited until the day before trial to plead guilty, after
5
Case: 12-16167 Date Filed: 03/21/2014 Page: 6 of 6
the government had prepared fully for trial, including subpoenaing witnesses and
filing proposed jury instructions, voir dire questions, and a motion in limine. In
addition, at Joseph’s request, the district court delayed the trial date on two
separate occasions, giving him additional time to investigate his case. Although
Joseph argues the delay in entering his plea was because of the government’s
untimely disclosure of incriminating recorded telephone calls he had made from
jail, he concedes he knew the telephone calls had been recorded. Even though the
government filed a superseding indictment the day before trial, the superseding
indictment changed only the type of cocaine involved in the third count, and
Joseph does not explain how that change impacted his decision to plead guilty.
Because the district court did not err by refusing to grant Joseph an
additional one-level reduction for acceptance of responsibility, we affirm his 210-
month imprisonment sentence.
AFFIRMED.
6