NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-3382
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UNITED STATES OF AMERICA
v.
ARNALDO ECHEVARRIA,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-16-cr-00073-001)
District Judge: Hon. Esther Salas
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Submitted Under Third Circuit LAR 34.1(a)
April 26, 2018
Before: JORDAN, BIBAS, and SCIRICA, Circuit Judges
(Filed: April 30, 2018)
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OPINION ∗
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JORDAN, Circuit Judge.
A jury convicted Arnaldo Echevarria of various crimes he committed during his
employment with the United States Immigration and Customs Enforcement agency
∗
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
(“ICE”). Echevarria appeals his sentence, arguing that the District Court erred when
calculating his offense level under the United States Sentencing Guidelines (“U.S.S.G.”)
because it declined to grant him a two-level reduction for acceptance of responsibility
under U.S.S.G. § 3E1.1(a). For the reasons that follow, we will affirm.
I. BACKGROUND
Echevarria served as a deportation officer with ICE. In February 2016, the
government filed a nine-count indictment against him in the United States District Court
for the District of New Jersey alleging that, from 2011 to 2014, he abused his position by
agreeing to receive and receiving bribes, in violation of 18 U.S.C. §§ 201(b)(2) and 2,
harboring an alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (B)(ii), and making
false statements, in violation of 18 U.S.C. § 1001. The indictment specifically alleged
that Echevarria had accepted bribes from undocumented immigrants in exchange for
work permits that allowed them to remain in the United States, had falsified the
immigration status of some immigrants, and had operated a business with and attempted
to shield from ICE detection an undocumented immigrant with whom he was
romantically involved.
Echevarria pled not guilty and exercised his constitutional right to proceed to trial.
At trial, he argued that the government lacked credible evidence that he had committed
the alleged crimes. During cross-examination, Echevarria attacked the accuracy and
credibility of the government’s witnesses, and in closing arguments, asked the jury to
reject their testimony and to conclude that the government had failed to meet its burden
of proof.
2
After a seven-day trial, the jury convicted Echevarria on eight of the nine counts.
During his presentence interview, Echevarria maintained his innocence, and the
Probation Office circulated a draft Presentence Investigation Report (“PSR”) that
concluded an adjustment for acceptance of responsibility under § 3E1.1 was not
appropriate. After receiving the draft PSR, defense counsel advised the Probation Office
that Echevarria had accepted the jury’s verdict and had accepted responsibility for his
actions. Echevarria thus objected to the PSR’s denial of a three-level reduction in his
offense level calculation under § 3E1.1. The government opposed that objection. In the
final PSR, the Probation Office adhered to its initial conclusion that a § 3E1.1 reduction
was inapplicable, and, based on an offense level of 28, it calculated a recommended
sentence of 78 to 97 months of imprisonment.
At sentencing, when pressed on the legal basis for his objection, given that he had
gone to trial and was convicted, Echevarria conceded that the government had not moved
for a one-level reduction under § 3E1.1(b) and that at most, he could seek a two-level
reduction under § 3E1.1(a). He further agreed with the Court’s view that the objection
was more appropriately characterized as a request for a “variance” rather than “an actual
application of acceptance of responsibility” under § 3E1.1. (App. at 17.) He argued that
he had requested a meeting with the government after trial, during which he admitted to
committing the crimes of conviction, and had waived his right to appeal the verdict
against him. 3
3
At sentencing, the government confirmed meeting with Echevarria and also
suggested that the Court could take his post-trial acceptance of responsibility into account
3
The Court overruled Echevarria’s § 3E1.1 objection, but it considered the
evidence of his post-trial acceptance of responsibility as a mitigating factor when
determining his sentence. The Court expressly credited Echevarria’s meeting with the
government during which he “spoke to them candidly about [his] conduct,” as well as his
statements at sentencing expressing remorse, and concluded that he “should receive some
credit for” those actions. (App. at 50.) It therefore put aside its initial inclination to
impose a sentence at “the top of the range,” (App. at 49) and instead imposed a lower
sentence of 84 months’ imprisonment. Echeviarra now appeals.
II. DISCUSSION 4
On appeal, Echevarria raises a single challenge to his sentence. He argues that the
District Court committed clear error by finding that he was not entitled to a two-level
reduction for acceptance of responsibility under § 3E1.1(a).
Section 3E1.1 provides that a district court may grant a two-level reduction in the
offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his
offense,” U.S.S.G. § 3E1.1(a), and the defendant bears the burden to show by a
preponderance of the evidence that such a reduction is appropriate. United States v.
when considering the traditional sentencing factors under 18 U.S.C. § 3553(a). But it
maintained that his was not the “rare” case that qualified for a post-trial acceptance of
responsibility reduction under § 3E1.1(a). (App. at 19.)
4
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). “We review factual findings
underlying the denial of a Sentencing Guidelines reduction for acceptance of
responsibility for clear error, and reverse only if we are left with a definite and firm
conviction that a mistake has been committed.” United States v. Lessner, 498 F.3d 185,
199 (3d Cir. 2007).
4
Boone, 279 F.3d 163, 193 (3d Cir. 2002). The guideline commentary expressly provides
that “[t]his adjustment is not intended to apply to a 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.” U.S.S.G. § 3E1.1 cmt. 2. 5 Indeed, it
is “rare” that a defendant who proceeded to trial warrants an acceptance-of-responsibility
reduction, see id. (noting that, “[i]n rare situations,” the guideline may apply to a
defendant who exercises his right to trial, for example, to assert and preserve a legal
issue, such as a constitutional challenge to a statute, unrelated to factual guilt), and in
those cases, the commentary instructs that a defendant’s acceptance of responsibility
“will be based primarily upon pre-trial statements and conduct.” Id. Moreover,
Echevarria acknowledges, as he must, that “[t]he sentencing judge is in a unique position
to evaluate a defendant’s acceptance of responsibility,” and thus, her determination “is
entitled to great deference on review.” (Opening Br. at 6 n.2); see also United States v.
Dullum, 560 F.3d 133, 142 (3d Cir. 2009) (quoting U.S.S.G. § 3E1.1 cmt. 5).
We perceive no error in the District Court’s conclusion that this is not one of the
“rare instances” in which a post-trial acceptance of responsibility reduction would be
appropriate. (App. at 20.) The Court found that Echevarria “asserted his innocence all
throughout” trial, (App. at 20), and that he continued to maintain his innocence through
his post-trial interview with the Probation Office. Thus, having put the government to its
burden at trial, Echevarria falls squarely within the § 3E1.1 commentary, foreclosing
5
“We are bound by ‘Guidelines commentary interpreting or explaining the
application of a guideline.’” United States v. Carter, 834 F.3d 259, 262 n.4 (3d Cir.
2016), cert. denied, 137 S. Ct. 1124 (2017) (editorial marks and citation omitted).
5
eligibility for the offense-level reduction. U.S.S.G. § 3E1.1(a) cmt. 2; see also, e.g.,
United States v. DeLeon-Rodriguez, 70 F.3d 764, 767-68 (3d Cir. 1995) (affirming denial
of § 3E1.1(a) reduction where the defendant contested his factual guilt at trial by testing
the government’s evidence, including challenging the accuracy and credibility of its
witnesses).
III. CONCLUSION
For the foregoing reasons, we will affirm the sentence.
6