IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 93-1011
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BILLY JOE MILLS,
a/k/a Bobby Joe Mills,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(December 8, 1993)
Before JOHNSON, WIENER and DeMOSS, Circuit Judges.
WIENER, Circuit Judge.
This sentencing case implicates the proper application of a
relatively new provision of the United States Sentencing Guidelines
(the Guidelines)SQsubsection (b) of § 3E1.1SQwhich became effective
November 1, 1992.1 Here, the district court found that Defendant-
Appellant Billy Joe Mills had clearly demonstrated his acceptance
1
United States Sentencing Commission, Guidelines Manual,
§ 3E1.1(b) (Nov. 1992).
of responsibility, and awarded the 2-level decrease in his offense
level pursuant to § 3E1.1(a). The court refused, however, to award
Mills the additional 1-level decrease under § 3E1.1(b) (hereafter,
subsection (b)). This is the aspect of his sentencing that Mills
appeals. Agreeing with Mills that the district court erred in
denying him the additional 1-level decrease under subsection (b),
we reverse and modify his sentence and, as modified, affirm.
I
FACTS AND PROCEEDINGS
This case proceeded on an extremely fast track in the district
court. Mills and his brother were charged by indictment on June
16, 1992, with conspiring to transport, and transporting, stolen
goods in interstate commerce. The government posited that Mills
was in a continuing commission of the crime from its inception in
January 1992 through June 16, 1992, the date on which he was
charged.
Mills was arraigned on July 2, 1992, just two weeks and two
days after he was charged. On July 6, the court set Mills' trial
date for August 3, 1992, just a month and a day after his
arraignment and only six weeks after he was charged and his
criminal conduct ceased.
On July 13, 1992SQseven days after his case was set for trial,
11 days after his arraignment, and only six weeks after he ceased
his criminal conduct and was chargedSQcounsel for Mills and counsel
for the government reached a tentative plea agreement: If Mills
would plead guilty to one count of the two-count indictment, the
2
government would dismiss the other count at sentencing.
Both counsel apparently assumed that Mills would accept the
plea agreement thus negotiated on July 13, as on that day Mills'
re-arraignment was scheduled for Thursday, July 16, three days
later. But on Wednesday, July 16SQtwo days after counsel had
reached the tentative plea agreement and one day before Mills was
scheduled to be re-arraignedSQhis counsel advised government
counsel that Mills had not found the tentative plea agreement
acceptable. The re-arraignment scheduled for the following day,
July 16, was thus upset. The day after that (Friday, July 17)
counsel for Mills filed a Motion for Leave to File a Late Motion
and Brief, stating that "[a]t this point, it is dubious whether
this case will result in a plea." Six days later, on Thursday, July
23, the government filed a response to Mills' July 17 motion,
agreeing to some of Mills' discovery requests and objecting to
others.
Mills apparently had a quick change of heart: On the
following Thursday, July 30SQone week to the day after the
government had filed its response to Mills' discovery motion and 28
days after his arraignmentSQMills pleaded guilty to the conspiracy
count in exchange for the dismissal of the remaining count of the
indictment. The record does not reflect precisely when Mills
informed the government that he would plead guilty, but his
intention to do so had to have been thus communicated sometime
after July 23 (the day on which the government filed its discovery
response) but before July 30 (the day on which Mills entered his
3
plea). The government's brief to this court confirms by
implication that the notification of intent to plead guilty pre-
dated the entry of plea on July 30 (". . . neither the court nor
the government could even be certain that Mills would actually
plead guilty on June 30th until he in fact did so plead").
In due course, the district court accepted Mills' guilty plea,
ordered a pre-sentence investigation to be completed by September
10, and set October 8 as the date for sentencing. As initially
submitted (at a time before subsection (b)'s November effective
date), the presentence investigation report (PSR) recommended a 2-
level decrease in Mills' offense levelSQthe only adjustment for
acceptance of responsibility then extant in the GuidelinesSQand
reported the amount of loss suffered by the victims of the crimes
perpetrated by Mills and his brother as "in excess of $500,000."
Sentencing was re-scheduled several times as a result of
Mills' objections to the portion of the PSR that established the
quantum of victim loss as exceeding $500,000. In a second addendum
to the PSR, the loss was reduced to $409,050; however, it was later
revised upward to $517,820. As a result of several postponements,
preparation of two PSR addenda, and re-schedulings, the last of
which was on the court's own motion and resulted from its
determination to consider further the possibility of an upward
departure (which never eventuated), Mills was not sentenced until
December 17, 1992.
That was some six weeks after the November 1 effective date of
§ 3E1.1's newly-added subsection (b), with its provision for a
4
third 1-level decrease for timeliness of acceptance of
responsibility. Presumably because it was such a recent addition
to the Guidelines, subsection (b) and the additional 1-level
reduction were never addressed in Mills' PSR or in either of the
two addenda thereto.
At sentencing the court accepted the probation department's
amended calculation of Mills' offense level as follows: Base
offense level, 4; specific offense characteristics, +12; more than
minimal planning, +2; abuse of a position of public or private
trust, +2, for a sub-total of 20; giving effect to -2 for
acceptance of responsibility under § 3E1.1; producing a net offense
level of 18. Coupled with a criminal history level of I, the
resulting Guidelines range for imprisonment was 27-33 months. The
court sentenced Mills to 33 months in prison (the maximum under
that range) plus three years of supervised release (also the
maximum) and a special assessment of $50.
The sentencing hearing had commenced on December 3, 1992, but
was adjourned and continued until December 17, 1992. At both
sessions, the court and counsel for Mills engaged in extensive
dialogue on the contested issue of the quantum of victim loss to be
used in calculating Mills' offense level. Also discussed at length
was the court's considerationSQeventually droppedSQof a possible
upward departure. In contrast, the matter of Mills' entitlement to
a 2-level decrease for acceptance of responsibility under
subsection (a) of § 3E1.1 was never questioned by the court or the
government. And it was only as an after-thought, at the very end
5
of the two-session sentencing hearing, that subsection (b)'s
additional 1-level decrease in offense level was mentioned for the
first time. On the penultimate page of the transcript of the two-
session sentencing hearing, the following brief colloquy took place
between the court and defense counsel:
COUNSEL: Your Honor, for purposes of the
record, was there a two-level or three-level
reduction for the acceptance of
responsibility?
THE COURT: He wouldn't be entitled to a
three-level because his offense level was not
16 or above. He can't get the extra--
COUNSEL: I believe the court set the offense
level at 18.
THE COURT: That's correct. He had received
acceptance of responsibility for two in the
presentence report--minus 2 in the presentence
report.
COUNSEL: Right. Would he be--I believe my
position is that he would be eligible for a 1-
level--
THE COURT: No. He gets another reduction of
one level if his plea is timely and the
offense level, except for acceptance of
responsibility, is 16 or above.
Only in that short exchange did the court ever advert to the
additional 1-level reduction of subsection (b): The quoted
discussion was preceded by the court's unrelated statement to Mills
that appellate counsel and a record of the district court
proceedings would be provided at no cost if he could not pay for
them; and was followed by another unrelated statement by the court
to Mills concerning the Sentencing Guidelines and the statutory
maximum sentence.
6
II
ANALYSIS
A. Standard of Review
We review the sentencing court's finding on acceptance of
responsibility for clear error but with more deference than under
a pure clearly erroneous standard.1 A finding is clearly erroneous
when, although some evidence supports the decision, we are "left
with the definite and firm conviction that a mistake has been
committed.2 "Review of sentences imposed under the guidelines is
limited to a determination whether the sentence was imposed in
violation of law, as a result of an incorrect application of the
sentencing guidelines, or was outside of the applicable guideline
range and was unreasonable."3
B. Acceptance of Responsibility
Mills was sentenced under the version of the Guidelines that
became effective November 1, 1992.4 The only aspect of his
1
United States v. Watson, 988 F.2d 544, 551 (5th Cir. 1993)
(citing United States v. Kinder, 946 F.2d 362, 367 (5th Cir. 1991)
cert. denied, U.S. , 112 S.Ct. 2290, 119 L.Ed.2d 214
(1992)), petition for cert. filed, U.S.L.W. (U.S. July
29, 1993) (No. 93-5407).
2
United States v. United States Gypsum Co., 333 U.S. 364,
395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).
3
United States v. Matovsky, 935 F.2d 719, 721 (5th Cir.
1991) (citing 18 U.S.C. § 3742(e)).
4
United States Sentencing Commission, Guidelines Manual,
(Nov. 1992). Irrespective of the version of the guidelines in
effect at the time a defendant commits the acts constituting the
offense, or enters his plea, or is convicted thereon, he is to be
sentenced under the version in effect at the time of sentencing.
Only when that version would produce a more severe punishment, and
thus implicate the Constitution's proscription of ex post facto
7
sentencing with which we are here concerned is acceptance of
responsibility under § 3E1.1, specifically the third or additional
1-level reduction in offense level for assisting authorities in the
investigation of the defendant's own misconduct, a 1992 provision
added as subsection (b).5
In an opinion handed down in a parallel case today, we analyze
and explicate subsection (b) in excruciating detail,6 finding that
subsection (b) establishes a tripartite test (the Tello test) for
entitlement to a third 1-level decrease: 1) The defendant must be
found by the sentencing court to be entitled to the basic 2-level
decrease under subsection (a); 2) his offense level, as determined
prior to application of the 2-level decrease under subsection (a),
must be 16 or greater; and 3) he must have assisted authorities by
taking either or both of the "steps" provided in subparagraph
(b)(1) and (2).7 Once the defendant is found to have met all three
prongs of the Tello test,8 the district court is directed, under
the imperative of the final clause of subparagraph (b), to award
the additional 1-level decrease in offense level.9
We shall consider initially the first and third prongs of the
laws, will an earlier version of the guidelines be applied at
sentencing; and such was not the case here. See, e.g., United
States v. Suarez, 911 F.2d 1016, 1021 (5th Cir. 1990).
5
U.S.S.G. § 3E1.1(b).
6
United States v. Tello, slip op. .
7
Id. at .
8
Id. at .
9
Id. at .
8
Tello test, follow that with a brief examination of its second
prong, then conclude with a check for the possibility of harmless
error. For Mills, the first prongSQthe defendant's entitlement to
a 2-level decrease under subsection (a)SQwas met when the
sentencing court adopted the recommendation contained in the
Presentence Investigation Report (PSR) that Mills be awarded such
a decrease. The government did not object then or on appeal,
either to the PSR's recommendation or to the court's award of the
basic 2-level decease for acceptance of responsibility. We
therefore need not further review the court's finding on that
issue, the significance of which for the instant analysis is that
the first prong of the Tello test was thereby satisfied.
The third prong of the Tello testSQthe defendant's assisting
authorities in the investigation or prosecution of his own
misconductSQis satisfied if he is found to have taken either of two
"steps," one defined in subsection (b)(1) (timely providing
complete information to the government concerning his own
involvement in the offense), and the other, defined in subsection
(b)(2) (timely notifying authorities of his intention to enter a
plea of guilty sufficiently early in the proceedings to permit the
government to avoid preparing for trial and the court to allocate
its resources efficiently).10
Nothing in the district court docket sheet or in any other
part of the record, particularly the transcripts of the plea and
sentencing hearings, advert to the subsection (b)(1) "step," i.e.,
10
Id. at .
9
the defendant's providing complete information to the government.
Neither is that step referred to in the PSR, presumably because it
was prepared before the effective date of subparagraph (b). Thus
we have no reason to consider the subsection (b)(1) step.
Not so, however, for the "step" defined in subsection (b)(2).
Although the PSR is equally silent as to this "step"SQpresumably
for the same reasonSQthe record is replete with historical facts
relevant to this step's substance: the timeliness of Mills'
notifying authorities of his intention to plead guilty, and the
assistance to authorities resulting therefrom, i.e., permitting the
government to avoid preparing for trial and permitting the court to
allocate its resources efficiently, the latter being defined as
permitting the court to "schedule its calendar efficiently."11
The statements of fact and statements of the case in the
appellate briefs of both the government and the defense, as well as
the record itself, establish beyond cavil thatSQeven in this "fast
track" caseSQthe third prong of the Tello test was met. As noted
earlier, Mills was charged on June 16, 1992, thereby terminating
his criminal activity, and was arraigned two weeks and two days
later. A mere 11 days after arraignment a tentative plea agreement
was reached by counsel for both sides, was initially found
unacceptable by Mills, but in a quick turnabout was accepted by
Mills within a matter of days. The government was so informed
sometime before July 30SQless than a month after arraignment, and
11
U.S.S.G. § 3E1.1, comment. (n. 6); Tello, slip op. at
.
10
only 1-1/2 to 2-1/2 weeks after counsel for the parties had reached
the tentative plea agreement.
Although not a requirement of Tello's third prong, formal
entry of Mills' guilty plea occurred on July 30, 1992. That was
less than a month after his arraignment and only six weeks after he
was charged.
That Mills' early notification to authorities of his intention
to enter a plea of guilty permitted the government to avoid
preparing for trial and the court to schedule its calendar
efficiently, is not thrown open to question by the fact that on
July 6th, the Monday following the Thursday on which Mills was
arraigned, the court set a tentative trial date for August 3,
1992SQa scant four weeks following Mills' arraignment and six weeks
following his being charged. Whatever else might be observed about
such a fast track trial date setting, there can no quibble about
its being tentative at best. Surely neither the prosecution nor
the defense could have proceeded to trial on August 3; in addition
to common sense and experience, support for this observation is
found in defense counsel's July 17 motion regarding briefing and
discovery. As noted in Mills' brief, "no witness list, exhibit
list, jury instructions or motions in limine were filed by either
the government or the defense. No motions other than the several
boilerplate discovery motions were filed." Under any realistic
analysis of the instant scheduling, Mills clearly took the step
defined in subsection (b)(2) when, sometime before July 30, he
notified authorities of his intention to enter a plea of guilty.
11
For the first time on appeal, the government attempts to
subject this determination to doubt, and to question this
conclusion. We find this argument unavailing. In this vein, we
find particularly significant the fact that, for all of its
protestations, the government's brief never comes right out and
says that Mills' plea notification came too late to prevent the
government from preparing for trial. Neither does that brief
anywhere state that the government did in fact prepare for the
tentatively scheduled August 3 trialSQa jury trial at that. We are
satisfied that if it had thus prepared, we would have been so
informed by the government in its brief. The government reads the
court's statements in the above-quoted dialogue with defense
counsel as denying the additional 1-level reduction because Mills'
"plea was not timely." We shall see in our consideration of the
second prong of the Tello test, however, that such a reading is
invalid. Read in context of the entire sentencing hearing, the
statement relied on by the government as a denial of the decrease
for lack of timeliness is shown to be nothing of the kind; rather,
the denial is seen to be grounded in offense level, pure and
simple.
Having observed that Mills satisfied the first and third
prongs of Tello's tripartite test, we turn lastly to the second
prong to see whether Mills' offense level, determined prior to the
operation of subsection (a)'s 2-level reduction for acceptance of
responsibility, is "level 16 or greater." In the above-quoted
brief dialogue between the court and defense counsel, occurring as
12
it did at the tail end of the second sentencing hearing and after
the court had announced that it would impose a prison term of 33
months, we find a clearly erroneous factual determination. The
court rejected out-of-hand any consideration of the "three-level
reduction for the acceptance of responsibility," which defense
counsel urged, "because [Mills'] offense level was not 16 or
above." In this statement the court was simply mistaken.
Both the PSR and the court's own earlier discussion of Mills'
offense level make it abundantly clear that the level determined
and used by the probation department and by the court in
calculating Mills' sentencing range was 20 "prior to the operation
of subsection (a)" and 18 thereafter. In fact, when defense
counsel tried to question the court's denial further, the court cut
off the defense inquiry and correctly stated the rule that Mills
"gets another reduction of one level if his plea is timely and the
offense level, except for acceptance of responsibility, is 16 or
above." Although the court continued in its refusal to consider
that additional 1-level reduction, in so doing it implicitly
reaffirmed its reliance on its initial, clearly erroneous finding
that Mills' "offense level was not 16 or above." (emphasis added.)
As Mills' offense level indisputably was above 16, both prior
to and after allowance for the basic 2-level reduction under
subsection (a), he obviously satisfied this prong of the Tello test
just as he had the first and third prongs. Having thus satisfied
all three prongs, Mills was entitledSQas a matter of rightSQto the
13
third 1-level reduction in his offense level.12 Given the mandatory
language of the final clause of subsection (b)SQthat the sentencing
court is to "decrease the offense level by 1 additional level" for
any defendant determined to be eligible thereforSQthe court was
without any sentencing discretion whatsoever to deny Mills the
third 1-level decrease.
C. Harmless Error
In its appellate brief the government did not suggest that if
we should find an error in Mills' sentencing, we should find it to
be harmless. We nonetheless look for harmlessness on our own
motion.13 And, when we do so in the instant case we find that the
court's sentencing error was not harmless.
Mills' sentencing range of 27 to 33 months was calculated on
the basis of an erroneously determined offense level of 18 and
criminal history category of I; and the 33-month prison term
assessed by the court was the highest available under that
erroneously determined sentencing range. Had the proper offense
level of 17 and the same criminal history category of I been used
to calculate Mills' sentencing range, it would have been 24-30
months, obviously one in which the assessed term of 33 months is
not included. Thus the court's error was not harmless.
Most of the time when that is the case we must vacate and
12
Tello, slip op. .
13
Fed. R. Crim. P. 52(a); see also 18 U.S.C. § 3742.
14
remand for resentencing.14 But not so here. When we examine the
instant record in a manner implicitly called for under the
methodology specified in Williams v. United States,15 we find that
the sentencing court left no doubt that, as far as it was
concerned, Mills should be incarcerated for the maximum term
permitted under the applicable Guidelines range but without
implementation of an upward departure. In light of that
observation, we would be wasting judicial resources if we were to
vacate Mills' sentence and remand his case for what undoubtedly
would be a rote imposition by the district court of the highest
term of incarceration permitted under the correct sentencing range
of 24-30 months. For purposes of the instant case, that is what is
meant by "same sentence."16 So, instead of vacating and remanding
for resentencing by the district court, we reverse the term of
incarceration imposed by the district court, modify that term to
one of 30 monthsSQthe maximum within the correct sentencing
rangeSQand affirm Mills' sentence as thus modified. In all other
respects Mills' sentence as imposed by the district court is
affirmed.
REVERSED and MODIFIED in part and, as thus modified, AFFIRMED.
14
United States v. Williams, 961 F.2d 1185, 1187 (5th Cir.
1992) (citing Williams v. United States, U.S. , 112 S.Ct.
1112, 1121, 117 L.Ed.2d 341, 354-55 (1992)).
15
Williams, 112 S.Ct. at 1112.
16
Tello, slip op. at .
15