UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-30167
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENE DIAZ,
Defendant-Appellant.
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__________________
No. 94-30168
Summary Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL SOLIS,
Defendant-Appellant.
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Appeals from the United States District Court for the
Eastern District of Louisiana
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(November 25, 1994)
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
GARWOOD, Circuit Judge:
In this consolidated appeal, defendants-appellants Rene Diaz
(Diaz) and Paul Solis (Solis) complain of the sentence imposed
under the United States Sentencing Guidelines following their
convictions on pleas of guilty to charges of conspiring to possess
with the intent to distribute cocaine hydrochloride contrary to 21
U.S.C. §§ 841(a) and 846. Both defendants insist that the district
court erred in not awarding any credit for acceptance of
responsibility under section 3E1.1 of the Guidelines. For the
reasons that follow, we affirm.
Facts and Proceedings Below
In cooperation with a confidential informant (CI), United
States Customs agents seized thirty-one kilograms of cocaine
hydrochloride from the M/V Balsa 43 when it arrived in New Orleans
from Colombia on May 25, 1993. That evening, after giving agents
the telephone numbers of the intended recipients of the cocaine,
the CI agreed to make a controlled delivery. At approximately
5:40 p.m., the CI called Diaz, one of the intended recipients.
Diaz agreed to travel from Miami to New Orleans the next day to
purchase 8 kilograms of cocaine for $20,000. Diaz also indicated
that he would return later to New Orleans to purchase twelve more
kilograms.
The next day, May 26, 1993, Diaz arrived in New Orleans with
Solis and two other people. Shortly after their arrival, Diaz and
Solis (Defendants) went to the agreed-upon site for the purchase.
When the CI arrived, Solis approached him. Then Diaz joined Solis,
and together they led the CI to their van. Once there, Defendants
took the cocaine but refused to pay for it. They forced the CI
from the van and fled the scene. Five hours later, customs agents
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intercepted two vans headed for Miami, one driven by Solis and the
other by Diaz. In the van driven by Solis, the agents discovered
$20,000. On the side of the road nearby, agents found eight
kilograms of cocaine wrapped in the same packaging used for
delivery by the CI.
On July 16, 1993, an indictment returned against Defendants
charged them with one count of conspiracy to possess with the
intent to distribute eight kilograms of cocaine hydrochloride in
violation of 21 U.S.C. §§ 841(a)(1) and 846. After some delay, the
trial was scheduled for November 15, 1993. On that morning, just
before trial, Defendants entered into plea negotiations. As a
result, the government filed a superseding information charging
Defendants with the same crime but omitting reference to the amount
of cocaine specified in the indictment. Defendants then pleaded
guilty to the charge. The district court accepted the pleas and
ordered presentence investigation reports (PSRs).
Diaz's PSR recommended awarding credit for acceptance of
responsibility because "he acknowledges that he traveled from Miami
to New Orleans to do a cocaine transaction." Solis's PSR
recommended not awarding the credit because "he denies having any
knowledge that the purpose of the trip to New Orleans was to
purchase cocaine" and because "[h]e denies knowing that a drug deal
was occurring prior to his meeting with the government informant
and further indicates that he was no more than an observer." At
the sentencing hearing on March 9, 1994, the district court
informed Defendants of its decision not to award either of them any
credit for accepting responsibility. At that time, the district
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court based its decision on two facts: (1) Defendants' delay
before pleading guilty and (2) Defendants' failure to tell the
whole truth. When Defendants objected, the district court made
clear that its decision was firm but offered Defendants an
opportunity to consider withdrawing their pleas. Both Diaz and
Solis declined.
The district court then sentenced Diaz, who had a total
offense level of 32 and a criminal history category of III, to 180
months in prison and 3 years' supervised release. The court
sentenced Solis, who had a total offense level of 32 and a criminal
history category of II, to 150 months in prison and 3 years'
supervised release. After the hearing, in its written reasons for
the sentence, the district court indicated that Defendants' prior
felony convictions also supported its decision not to allow credit
for acceptance of responsibility.
After Defendants filed timely notices of appeal, this Court
granted their motion to consolidate the two cases. As their only
issue on appeal, Defendants contend that the district court erred
in not awarding them credit for acceptance of responsibility.
Finding no reversible error in either case, we affirm.
Discussion
Whether the district court correctly applied the Guidelines is
a question of law subject to de novo review. United States v.
Howard, 991 F.2d 195, 199 (5th Cir.), cert. denied, 114 S.Ct. 395
(1993). Under U.S.S.G. § 3E1.1, Defendants must prove they are
entitled to credit for acceptance of responsibility. Because the
district court "is in a unique position to evaluate a defendant's
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acceptance of responsibility[,]" we review the district court's
underlying factual findings and ultimate determination under a
standard even more deferential than clear error. U.S.S.G. § 3E1.1,
comment (n. 5); United States v. Brown, 7 F.3d 1155, 1162 (5th Cir.
1993).
Section 3E1.1(a) of the Guidelines allows a two-point
reduction in the total offense level when a defendant "clearly
demonstrates acceptance of responsibility for his offense."
U.S.S.G. § 3E1.1(a). "The mere entry of a guilty plea, however,
does not entitle a defendant to a sentencing reduction for
acceptance of responsibility as a matter of right." United States
v. Shipley, 963 F.2d 56, 58 (5th Cir.) (per curiam), cert. denied,
113 S.Ct. 348 (1992). Only a defendant who qualifies for this
downward adjustment under section 3E1.1(a) may obtain an additional
one-point credit under subsection (b).1 In short, a defendant not
awarded a two-point reduction under subsection (a) is ineligible
for a single-point reduction under subsection (b). Because, in
this case, the court decided not to award either defendant any
points for acceptance of responsibility, only subsection (a) is at
issue.
Defendants assert that the district court misapplied the
Guidelines. In particular, Defendants claim the district court
erred as a matter of law in basing its decision in part on
1
A one-point credit under subsection (b) is available if the
total offense level is sixteen or greater and if the defendant
has either "timely provid[ed] complete information to the
government concerning his own involvement in the offense" or
timely notified authorities of his intention to plead guilty.
U.S.S.G. § 31E.1(b)(1).
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Defendants' criminal history and on the timeliness of their pleas.
With respect to the first contention, we agree with Defendants that
the district court erred in factoring their prior offenses into its
decision not to grant credit for acceptance of responsibility.
While the bare fact that Defendants had prior felony convictions is
relevant to the calculation of a criminal history category, it has
no independent bearing on whether Defendants had accepted
responsibility for the crime charged.
The district court's consideration of an irrelevant factor,
however, is "not fatal if there is some other reason to be found
that supports" the court's decision: "We may always affirm a
district court's ruling, made for an invalid reason, if we are
shown or can find a valid reason to support the ruling." United
States v. Tello, 9 F.3d 1119, 1128 (5th Cir. 1993). Here, we are
convinced that the reference to prior convictions, first appearing
in the written reasons composed after the sentencing hearing, is no
more than an afterthought. The two other factors (timeliness and
truthfulness), on the other hand, were the sole expressed bases for
the decision at the actual time of sentencing. Because the
district court's decision was independently supported by two other
factors, and because we conclude that there is no reasonable
possibility that the district court would have granted any credit
for acceptance of responsibility had it never considered the
previous convictions in that connection, we hold that the court's
post hoc reference to prior convictions as also supportive of its
decision was harmless error in this case.
Defendants also challenge the district court's consideration
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of timeliness. According to Defendants, whether a plea was timely
relates only to the one-point award under subsection (b) and cannot
relate to the two-point reduction under subsection (a). We
disagree. While the terms of subsection (b) mandate consideration
of timeliness, the terms of subsection (a) do not forbid it.
Indeed, the consideration of timeliness is expressly allowed. The
application notes to section 3E1.1(a) state, "In determining
whether a defendant qualifies under subsection (a), appropriate
considerations include, but are not limited to, the following: . .
. (h) the timeliness of the defendant's conduct in manifesting the
acceptance of responsibility."2 We therefore find no error in the
district court's consideration of this factor.3
2
In arguing that a district court cannot consider timeliness
under subsection (a), Defendants rely on the following portion of
United States v. Tello, 9 F.3d 1119 (5th Cir. 1993):
"We are unable to read anything into § 3E1.1
or into Tello's interpretation of it, that
'ties acceptance of responsibility to the
timeliness of the entry of the plea.' To the
contrary, the element of timeliness is
nowhere to be found in any aspect of the
basic 2-level decrease . . . ." Id. at 1127.
Initially we note that, because Tello dealt with section 3E1.1(b)
only, any reference in the opinion to subsection (a) was mere
dicta, which we refuse to interpret contrary to the express terms
of the application notes to section 3E1.1. In any event,
however, this dicta is not inconsistent with our holding today.
The passage quoted was in response to the government's contention
that "tieing" acceptance of responsibility to timeliness "would
obligate every district court to automatically reduce offense
levels by three whenever a prompt guilty plea was made." Id. at
1127 (citation and emphasis omitted). Recognizing the flaw in
this logic, the panel merely pointed out that under subsection
(a), unlike subsection (b), timeliness is not an indispensible
element of the credit and thus not a factor the court must be
governed by.
3
We do not read the statements of the district court to mean,
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Finally, Defendants contend that the district court committed
clear error in concluding, on these facts, that Solis and Diaz had
not clearly accepted responsibility. As mentioned earlier, at the
sentencing hearing the district court based its decision on both
the timeliness and truthfulness of Defendants. With respect to
timeliness, both parties agree that Defendants waited until the
morning of trial to enter plea negotiations, thereby denying all
involvement until almost six months after their arrest. See
Wilder, 15 F.3d at 1299 (decision not to award credit under section
3E1.1(a) based in part on the defendant's failure to plead guilty
until the "eve of trial"). Given this delay, the district court
did not err in finding that Defendants were untimely in
"manifesting the acceptance of responsibility."
The court also found that Defendants had failed to acknowledge
the full extent of the charged conspiracy. Acceptance of
responsibility hinges on a defendant's "truthfully admitting the
conduct comprising the offense(s) of conviction" and demonstrating
"'sincere contrition' regarding the full extent of . . . criminal
conduct." Id. (emphasis added). Diaz and Solis both maintained
that Solis knew nothing of the drug transaction before meeting with
the CI. In his written statement, Solis portrayed himself, in the
as Defendants suggest, that a defendant must accept
responsibility at the moment of arrest to qualify for credit
under section 3E1.1(a). The identified comments of the court at
the sentencing hearing reflect a concern not so much with the
delay per se but with the reasons for the delay: "To me,
acceptance of responsibility is, when you are caught, not until
you see that you are in a corner and you don't have anywhere else
to go." Elsewhere, the court's comments relate only to the last-
minute timing of the pleas.
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words of the PSR, as an "observer" more than an active participant
in a criminal conspiracy. The district court was entitled to
discredit this assertion, considering that Solis was the first to
approach the CI at the purchase site and the one whose van
contained both the money and the drugs on the way back to Miami.
Diaz, too, while acknowledging his intention to drive to New
Orleans to purchase drugs, persistently discounted the existence of
a conspiratorial agreement with Solis. These facts justify the
district court's finding that Diaz and Solis failed to come clean
on the full extent and nature of their charged conspiracy.
Because these factual determinations are not clearly
erroneous, the district court acted well within its broad
discretion in concluding that Defendants had failed to demonstrate
a clear acceptance of responsibility. Accordingly, Defendants were
not entitled to the two points credit under subsection (a) nor, a
fortiori, the single point credit under subsection (b).
Conclusion
The judgment of the district court is
AFFIRMED.
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