United States v. Williams

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

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94-50694
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

DONALD KEITH WILLIAMS,
Defendant-Appellant.

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__
Appeal from the United States District Court for the
Western District of Texas
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January 30, 1996

Before POLITZ, Chief Judge, HILL* and DeMOSS,
Circuit Judges.

JAMES C. HILL, Circuit Judge:

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* Circuit Judge of the Eleventh Circuit, sitting by
designation.
 Appellant Donald Keith Williams, a thrice-convicted
felon,1 appeals his conviction and sentence for unlawfully

possessing a firearm with an obliterated serial number, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a).
Williams claims that the district court erred in refusing to

grant him an additional one-level reduction for

acceptance of responsibility pursuant to U.S.S.G. §

3E1.1(b)(2).2 Finding no clear error by the district court,
we AFFIRM Williams' conviction and sentence.
I. FACTUAL AND PROCEDURAL BACKGROUND
In February, 1992, at the H & H Lounge in Temple,

Texas, Williams met with owner/bartender/bouncer Roy
Wood. Wood gave Williams ammunition, i.e., four or five

.25 caliber pistol rounds. Later that night, Williams was
in a fight with another bar patron and was physically
removed from the bar premises by Wood. While

escorting Williams to the door, Wood felt a pistol in the

breast pocket of Williams' green army fatigue jacket.

Williams was convicted in 1983, of delivery of
1

methamphetamine and delivery of marijuana. In 1987,
he was convicted of burglary.
2
A second issue raised by Williams, for the first time
on direct appeal, that his trial counsel was ineffective by
failing to advise him to enter a conditional plea, is
without merit and not discussed.
2
The remaining patrons left the bar and the fight
continued in the parking lot. A few minutes later,

Williams returned to the lounge, banged on the door, and

demanded to be let in. Wood saw a small caliber
handgun in Williams' hand and called police.

Williams fled the H & H Lounge in a maroon pickup,

passing Temple police officers responding to the call.3

Two patrol units turned and gave chase for fifteen blocks
at speeds approximating seventy to eighty miles per hour.
Due to wet road conditions, the police officers did not
attempt to overtake the maroon pickup, just keep it

within their vision. When they lost sight of the vehicle,
they notified the radio dispatcher and terminated pursuit.

Meanwhile, Williams drove the pickup through a
cemetery, some medium-sized trees, and a barbed-wire
fence. He flipped it over at a nearby playground and left

it to rest, right side up, on top of a jungle gym set.

Unobserved by police, Williams then fled the area on
foot, leaving behind his green army fatigue jacket

containing a Raven MP25 .25 caliber pistol with an

3
These police officers would later identify the man
they passed from a photograph as Donald Keith
Williams.
3
obliterated serial number. Nine months later, a grand
jury returned a one-count indictment against Williams.

Williams remained a fugitive for more than two years.
Upon his arrest in March, 1994, he gave a voluntary

statement to authorities that he was the person who

possessed the gun, and that he had acquired it at the time

he stole the maroon pickup.
On the day of trial, without a plea agreement,
Williams pleaded guilty to the one-count indictment
charging him with being a felon in possession of a

firearm. Based upon an offense level of thirty-one and a
criminal history category of VI, the district court

sentenced Williams in the middle of the sentencing
guideline range, i.e., a term of 210 months' imprisonment
and five years' supervised release. He is currently

incarcerated.

II. STANDARD OF REVIEW
This court reviews a district court's finding of

acceptance of responsibility for sentencing purposes for

clear error but "under a standard of review even more

deferential than a pure clearly erroneous standard."

4
United States v. Gonzales, 19 F.3d 982, 983 (5th Cir.)
(internal citation and quotation omitted), cert. denied,

115 S. Ct. 229 (1994).

III. DISCUSSION
On appeal, Williams contends that the district court

erred in refusing to give him a three-level, instead of a

two-level, downward adjustment in his offense level for

acceptance of responsibility. U.S.S.G. §§ 3E1.1(b)(1)
and (2); (a). The district court based its finding on the
recommendation of the probation officer in her
Presentence Investigation Report (PSR).

In the PSR, the probation officer recommended a two-
level vis a vis three-level reduction as Williams had entered

his guilty plea on the same day as his case was set for
trial, thereby causing the government to prepare for trial.
The probation officer also noted that Williams did not

"timely provide complete information to the government

concerning his own involvement in the offense,"
U.S.S.G. § 3E1.1(b)(1), as Williams absconded for over

two years before being arrested.4

4
When Austin, Texas police officers stopped
Williams on March 17, 1994, he initially gave them a
false name, but later admitted his true name and told the
officers that he was "tired of running."
5
 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 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.

In this case the district court denied Williams'

suppression motion and Williams entered his guilty plea

6
both on the same day -- the day of trial.5 Williams argues
that he satisfied the third prong of the test by pleading

guilty. See U.S.S.G. § 3E1.1(b)(2).

Subsection (b)(2), U.S.S.G., defines timely acceptance
in functional, not exclusively temporal, terms. United

States v. Kimple, 27 F.3d 1409, 1412 (9th Cir. 1994).

That is, a defendant is entitled to the additional reduction

for timely notifying the authorities of his intention to
plead guilty if the two goals of that provision are
fulfilled: (1) the government avoids needless trial
preparation, and (2) the court is able to allocate its

resources efficiently. Id., see U.S.S.G. § 3E1.1(b)(2).
Application Note 6 provides in pertinent part:

For example, to qualify under
subsection (b)(2), the defendant must
have notified authorities of his
intention to enter a plea of guilty at a
sufficiently early point in the process so
that the Government may avoid preparing for trial and the
court may schedule its calendar efficiently.

§ 3E1.1, comment. (n.6) (Nov. 1992) (emphasis added);
Kimple, 27 F.3d at 1412. Note 6 further explains that

5
Cf. United States v. Bell, No. 93-2663 (5th Cir.
1994) (unpublished) (where a guilty plea entered on the
day of trial was untimely in a case where the defendant's
motion to suppress had been denied eleven days prior to
trial).
7
"[i]n general, the conduct qualifying for a decrease . . . under
subsection [(b)(2)] will occur particularly early in the case."

Id. (emphasis added). That provision is also careful to

point out, however, that the timeliness consideration is
context specific. Id.6

A recent Seventh Circuit case, United States v.

Covarrubias, 65 F.3d 1362 (7th Cir. 1995), decided after

6
A defendant who pleads guilty on the eve of trial is
not entitled to the additional one-level reduction for
timely acceptance of responsibility under subsection
(b)(2). Kimple, 27 F.3d at 1413, citing United States v.
Robinson, 14 F.3d 1200, 1203 (7th Cir. 1994) (guilty
plea four days before trial not timely acceptance); United
States v. Schau, 1 F.3d 729, 731 (8th Cir. 1993)
(defendant not entitled to timely acceptance reduction
where government had already prepared for trial before
defendant confessed and pled guilty); United States v.
Donovan, 996 F.2d 1343, 1345 (1st Cir. 1993)
(defendant not entitled to timely acceptance reduction
where defendant's plea agreement was reached on the eve
of a second trial date); United States v. Morillo, 8 F.3d
864, 872 (1st Cir. 1993) (a defendant who "stands poised
on the brink of trial has no entitlement to the [(b)(2)
reduction]." Eve of trial pleas defeat the purpose of
subsection (b)(2) and do not necessarily serve to
vindicate the defendant's constitutional rights. Kimple,
27 F.3d at 1413. The defendant's guilty plea must come
early enough in the proceedings to preclude the
government from preparing for trial and to enable the
court to avoid unnecessarily expending judicial
resources. Id.; see also United States v. Wilson, 52 F.3d
329 (7th Cir. 1994) (unpublished) (where one-level
decrease was denied when motion to suppress hearing
was held on March 11, the order denying motion to
suppress was entered on April 11, the trial was continued
until April 25, and again until May 31, and guilty plea
entered on the morning of trial, May 31).
8
briefs in this case were filed, closely parallels our own.
In Covarrubias, the hearing on the defendant's

suppression motion was held on November 7, the

morning of trial, and, Covarrubias pleaded guilty as soon
as the motion was denied. The district court denied

Covarrubias the one-level reduction. The only fact that

distinguishes Covarrubias from this case is that the

original suppression hearing was scheduled for October
21, but continued over until November 7, the day of trial,
at Covarrubias' request. Covarrubias did not inform the
government that he would be pleading guilty in the event

that the suppression motion was denied.7 The Seventh
Circuit found that because Covarrubias made no attempt

to conserve government and court resources prior to the
day of trial, the district court did not clearly err in
denying him the additional reduction. We find that the

same rationale applies here.

IV. CONCLUSION

7
See United States v. Narramore, 36 F.3d 845, 846
(9th Cir. 1994) (pretrial motion to dismiss would have
"completely obviated" trial and a conditional offer to
plead guilty therefore would have prevented trial
preparation); cf. United States v Morillo, 8 F.3d 864, 872
(1st Cir. 1993) (even a conditional offer to plead guilty
does not entitle a defendant to an additional reduction
under U.S.S.G. § 3E1.1(b)(2)).
9
 The district court did not clearly err in refusing to give
Williams an additional one-level reduction for sentencing

purposes for acceptance of responsibility under U.S.S.G.

§ 3E1.1(b)(2). We affirm Williams' conviction and
sentence.

AFFIRMED.

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