UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50329
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEONEL LOPEZ-TORRES
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(A-94-CR-143-4)
May 17, 1996
Before POLITZ, Chief Judge, KING and DENNIS, Circuit Judges.
PER CURIAM:*
Leonel Lopez-Torres appeals the sentence imposed for his guilty plea
conviction of possession with intent to distribute marihuana, 21 U.S.C. §
841(a)(1). Concluding that Lopez-Torres was entitled to an additional one-
level reduction under U.S.S.G. § 3E1.1(b)(2) for acceptance of responsibility,
we vacate in part, affirm in part, and remand for resentencing.
*
Pursuant to Local Rule 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in Local
Rule 47.5.4.
Background
The guilty plea was entered pursuant to a plea agreement. Lopez-Torres
sought and received a two-point offense level reduction for acceptance of
responsibility under Section 3E1.1(a). The district court, however, declined
to reduce the offense level an extra point under Section 3E1.1(b). The
Sentencing Guidelines computation by the court was an offense level of 30
and a criminal history category of II, which resulted in a sentencing range of
108-135 months. Lopez-Torres was sentenced to 135 months imprisonment,
3 years supervised release, a $15,000 fine, and a $50 special assessment. He
timely appealed.
Analysis
The standard governing entitlement to the additional one-level reduction
under Section 3E1.1(b) is well-established in this circuit: 1
Section 3E1.1(b), U.S.S.G., sets forth a three-part test to determine
whether a defendant is entitled to the additional one-level reduction.
United States v. Mills, 9 F.3d 1132, 1136 (5th Cir. 1993). The
sentencing court is directed to grant the additional decrease if: (1) the
defendant qualifies for the basic two-level decrease for acceptance of
responsibility under § 3E1.1(a); (2) the defendant’s offense level is
sixteen or higher before the two-level reduction under § 3E1.1(a); and,
(3) the defendant timely ‘assisted authorities’ by either: (a) providing
complete information to the government concerning his own
involvement in the offense; or (b) 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 efficiently. United States v. Tello, 9 F.3d 1119, 1124-25 (5th
Cir. 1993) (emphasis added). If the defendant satisfies all three prongs
1
The government’s contention that this case should be reviewed for plain error is
meritless; Lopez-Torres requested the extra one-level reduction in both his written objections
to the presentence report and at the sentencing hearing.
2
of the test, the district court is ‘without any sentencing discretion’ to
deny the additional one-level decrease. Mills, 9 F.3d at 1138-39.2
Lopez-Torres’ computation reached a base offense level of 32 and he
was given the basic two-level reduction under Section 3E1.1(a). He thus
satisfied the first two elements of the tripartite test. As to the third element,
the district court, while making no explicit finding,3 noted that his guilty plea
effectively spared the government any significant trial preparation.4 Our
review of the record leads us inexorably to this conclusion and to the further
conclusion that the district court was obliged to grant Lopez-Torres the
requested additional one-point reduction.
We vacate the sentence as it relates to the term of imprisonment and
that portion of the sentence denying the one-point reduction for acceptance of
responsibility under Section 3E1.1(b)(2). Upon remand, resentencing is to be
2
United States v. Williams, 74 F.3d 654, 656 (5th Cir. 1996).
3
The government urges that the district court punish Lopez-Torres for not
cooperating fully with the authorities. Indeed, it sought a two-point increase for
obstruction of justice. The government has not appealed the district court’s refusal
to adjust Lopez-Torres upward for this so-called “obstruction of justice,” and the
mandatory nature of Section 3E1.1(b) leaves the district court no discretion to deny
the one-point reduction to an eligible defendant. In addition, the district court
opined that the reduction for acceptance of responsibility would make no difference
due to “overlapping guidelines.” While this might have been true when the initial
two-level adjustment under Section 3E1.1(a) was considered, the additional one-
point reduction reduces Lopez-Torres’ offense level to 29 which, with his criminal
history category of II, leads to a guidelines range of 97-121 months, beneath the
sentence of 135 months imposed.
4
This point is conceded by the government, which notes in brief that “there are
no apparent reasons for denying the third level based on causing the prosecution to
prepare for trial or by preventing the court from managing its calendar efficiently.”
Brief of Government, P. 13, citing Tello, 9 F.3d at 1128.
3
based on an offense level of 29 and a criminal history category of II. In all
other respects the sentence imposed by the district court is affirmed.
VACATED in part, AFFIRMED in part, and REMANDED for
resentencing in accordance herewith.
4