Case: 09-10079 Document: 00511039121 Page: 1 Date Filed: 03/02/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 2, 2010
No. 09-10079
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONNIE WILLIAMSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 4:06-CR-200-1
Before SMITH, CLEMENT, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ronnie Williamson appeals his sentence, arguing that the district court
committed procedural error when it denied a one-point reduction for acceptance
of responsibility under U.S.S.G. § 3E1.1(b). We affirm.
Case: 09-10079 Document: 00511039121 Page: 2 Date Filed: 03/02/2010
No. 09-10079
I.
A jury previously convicted Williamson of violating 18 U.S.C. § 841(a)(1)
and (b)(1)(A) by possessing with the intent to distribute 50 or more grams of co-
caine. We remanded for a new trial. See United States v. Williamson, 533 F.3d
269 (5th Cir. 2008). The government then charged Williamson, in a one-count
superseding bill of information, with the lesser offense of violating § 841(a)(1)
and (b)(1)(B)(iii) by possessing with intent to distribute 5 or more grams of co-
caine. Williamson signed a written plea agreement, pleading guilty. The gov-
ernment filed a motion requesting that he be granted a reduction in his offense
level under § 3E1.1(b) because, in its opinion, he had timely notified authorities
of his intention to enter a plea of guilty, thus permitting the government to avoid
preparing for trial and allowing the government and court to allocate their re-
sources efficiently. Cf. U.S.S.G. § 3E1.1(b) (2007).
The presentence report (“PSR”) calculated the total offense level to be 30,
which included a two-level decrease pursuant to § 3E1.1(a) for acceptance of re-
sponsibility. Williamson objected, arguing, in relevant part, that he should be
granted the additional one-point reduction for acceptance of responsibility in
§ 3E1.1(b) because the government filed a motion requesting the reduction and
because he met the criteria for it. The district court overruled the objections and
adopted the PSR.
II.
Regarding the one-point reduction, Williamson first claims that the ver-
sion of § 3E1.1(b) applicable to him does not give the district court independent
authority to conclude that the reduction is unwarranted where the government
has filed a motion asking for it. Second, Williamson asserts that, even if the
court does have independent authority to refuse the reduction, the court’s con-
clusion that he did not meet the § 3E.1.1(b) standard is erroneous. We review
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No. 09-10079
the district court’s legal conclusions de novo, see, e.g., United States v. Clark, 582
F.3d 607, 612 (5th Cir. 2009); United States v. Cisneros-Gutierrez, and its factual
conclusions for clear error,1 see, e.g., United States v. Gonzalez-Terrazas, 529
F.3d 293, 296 (5th Cir. 2008).
A.
Williamson contends that the 2003 amendments to the guidelines divested
the court of any role in determining whether to grant an additional one-point re-
duction under § 3E1.1(b).2 By his reasoning, if (1) the district court determines
that the two-level reduction in § 3E1.1(a) is warranted, and (2) the government
moves for an additional one-level reduction pursuant to § 3E1.1(b), the court has
no choice but to grant the one-level reduction. We disagree.
To support his argument, Williamson points to select passages in the
guidelines, such as the provision itself, which states:
[U]pon motion of the government stating that the defendant has as-
sisted authorities . . . 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, decrease the offense by 1 addi-
tional level.
§ 3E1.1(b). And he quotes a comment to the guideline: “Because the Govern-
ment is in the best position to determine whether the defendant has assisted au-
thorities in a manner that avoids preparing for trial, an adjustment under sub-
1
Indeed, the standard is “even more deferential than a pure clearly erroneous stan-
dard.” United States v. Gonzales, 19 F.3d 982, 983 (5th Cir. 1994). Williamson’s argument to
the contrary confuses our review of factual questions with our review of legal questions.
2
The 2003 amendments made it necessary that the government first file a motion stat-
ing that the defendant had assisted authorities by entering a timely guilty plea. See Prosecu-
torial Remedies and Tools Against Exploitation of Children Today Act of 2003 (PROTECT Act),
Pub. L. No. 108-21, § 401(g), 117 Stat. 650, 671-72 (2003).
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section (b) may only be granted upon a formal motion by the Government at the
time of sentencing.” U.S.S.G. § 3E1.1 cmt. 6. These passages, he claims, make
it plain that it is the government that determines whether a defendant warrants
an additional one-point reduction and that upon a motion stating such, the court
has no choice but to grant it.
Williamson misreads § 3E1.1(b) and its commentary. The guideline is
hardly a model of clarity, but there is no reason to conclude that, by making a
government motion a prerequisite, Congress divested the sentencing court of its
independent authority to determine whether § 3E1.1(b) has been satisfied. The
court can apply the reduction only “upon motion of the government stating that
the defendant has assisted authorities . . . by timely notifying [it] of his intention
to enter a plea of guilty.” § 3E1.1(b). But there is no additional language pre-
cluding a role for the court in determining whether the plea “thereby permitt[ed]
the government to avoid preparing for trial and permitt[ed] the government and
the court to allocate their resources efficiently.” Id.
Moreover, the statement in the commentary that “the Government is in
the best position to determine whether the defendant has assisted authorities
. . . ,” § 3E1.1 cmt. 6, does not compel a different conclusion. That comment is
used to support the reason, contained later in the same comment, why “an ad-
justment under subsection (b) may only be granted upon a formal motion by the
Government . . . .” Id. It is unsurprising that Congress would include that lan-
guage in the commentary, given that the 2003 amendment’s requirement of a
government motion represented a change from the pre-2003 guidelines.
Likewise notable is the fact that that comment uses permissive language.
It says “may only be granted.” § 3E.1.1 cmt. 6 (emphasis added). Had Congress,
as Williamson suggests, meant for the court to have only a ministerial role, we
would expect to see in the commentary a mandatory command.
Finally, comment five makes a claim, concerning the court’s ability to de-
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No. 09-10079
cide whether a reduction is warranted, that is similar to comment six’s about the
government’s power to recommend a reduction. It states, “The sentencing judge
is in a unique position to evaluate a defendant’s acceptance of responsibility. For
this reason, the determination of the sentencing judge is entitled to great
deference on review.” U.S.S.G. § 3E1.1 cmt. 5. Although one might argue that
that comment is more applicable to § 3E1.1(a), the comment itself does not limit
its reach to that provision, and § 3E1.1(b) is a subsection of § 3E1.1, Acceptance
of Responsibility. See generally § 3E1.1.
Our reading accords with the relevant caselaw. In United States v. Wil-
liams, 284 F. App’x 212, 212 (5th Cir. 2008) (per curiam), relying on comment
six, we stated that “the decision whether to grant the additional level of reduc-
tion is the district court’sSSnot the government’sSSeven though the court may
only do so on the government’s motion.”
Other circuits have confronted the issue, too, if only obliquely. In United
States v. Sloley, 464 F.3d 355, 360 (2d Cir. 2006), the court found that “the
PROTECT Act altered [§ 3E1.1] by amending the subsection and adding the fur-
ther element of a prosecutor’s motion, thereby making qualification for an addi-
tional reduction under subsection (b) more difficult.” The court concluded that
“Congress’ aim in amending [§ 3E1.1] makes plain that under the new version
both the court and the government must be satisfied that the acceptance of re-
sponsibility is genuine.” Id. (emphasis added). And in United States v. Stacey,
531 F.3d 565, 568 (8th Cir. 2008), the court remanded for “‘content specific’ find-
ings regarding the one-level acceptance of responsibility,” suggesting that the
sentencing court has a role in determining whether the § 3E1.1(b) criteria are
met.
Notwithstanding, then, the ability to find isolated passages that might
suggest otherwise, the most reasonable reading of the text of the guideline and
its commentary is that the district court retains the ability to decide whether the
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No. 09-10079
§ 3E1.1(b) criteria have been met. The current version of § 3E1.1(b) differs from
the pre-amendment version in the addition of a new roadblock: Now, for a
§ 3E1.1(b) reduction, the government must first determine that the defendant
assisted authorities by entering a timely guilty plea, and the government must
file a motion with the court to that effect; then the court must decide that the de-
fendant meets the § 3E1.1(b) criteria.
B.
Williamson argues, in the alternative, that the district court erred in de-
termining that he did not qualify for the extra reduction. We disagree.
The PSR contains a recommendation that the reduction be denied because
“the government had to initially prepare for trial and a new trial would have re-
quired minimal work and/or preparation.” The court overruled Williamson’s ob-
jection to the PSR, finding that (1) his guilty plea did not significantly assist the
government, because it would not have taken many resources to prepare for a
retrial; (2) he did not timely notify the government of his intent to plead guilty,
because the case initially went to trial; and (3) he did not use the court’s resourc-
es efficiently.
The court did not err. It kept its considerations to those contained in
§ 3E1.1(b)SSthe efficient use of the government’s and the court’s resources and
the timeliness of the plea.3 As part of its determination, the court was free to
3
Cf. United States v. Tello, 9 F.3d 1119, 1128-29 (5th Cir. 1993) (holding that sentenc-
ing court is limited to the considerations in § 3E1.1(b) to determine whether to grant the re-
duction and that § 3E1.1 determinations must be internally consistent); cf. also United States
v. Wheeler, 322 F.3d 823, 826 (5th Cir. 2003) (same). Here, there is no Tello problem. “The
timeliness of the defendant’s acceptance of responsibility is a consideration under both subsec-
tions . . . [but] . . . the conduct qualifying for a decrease in offense level under subsection (b)
will occur particularly early in the case.” § 3E1.1 cmt. 6.
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No. 09-10079
consider Williamson’s earlier decision to forgo a guilty plea and proceed to trial.4
Williamson, after all, “had a trial on the merits and a bite at the acquittal cher-
ry.” United States v. Sanchez-Ruedas, 452 F.3d 409, 415 (5th Cir. 2006).
Moreover, the point of § 3E1.1(b) is to reward defendants who notify au-
thorities early enough “so that the government may avoid preparing for trial and
the court may schedule its calendar efficiently.” § 3E1.1 cmt. 6. The district
court concluded that, regardless of however much additional trial preparation
the government avoided through Williamson’s guilty plea following remand, the
preparation for the initial trial and the use of the court’s resources for that trial
meant that the § 3E1.1(b) benefits to the government and the court were not ob-
tained. That finding was not “without foundation.” United States v. Washing-
ton, 340 F.3d 222, 227 (5th Cir. 2003); see also Vue, 38 F.3d at 975.
AFFIRMED.
4
Cf. United States v. Vue, 38 F.3d 973, 975 (8th Cir. 1994) (“Even though each defen-
dant pleaded guilty within approximately three months of the reversal of his convictions on
initial appeal, we do not agree that the government was saved much effort by those pleas,
since the bulk of preparation by the government was for the initial trial and could relatively
easily have been applied to the second trial as well.”).
7