UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-20914
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EDID PATINO-CARDENAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
June 10, 1996
Before POLITZ, Chief Judge, EMILIO M. GARZA and DeMOSS, Circuit
Judges.
DeMOSS, Circuit Judge:
Edid Patino-Cardenas (Patino) pleaded guilty in federal
district court to transporting an alien within the United States,
in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). He appeals his
sentence only, challenging: (1) the district court's failure to
adjust downward two-points for acceptance of responsibility, and
(2) the district court's two-point enhancement based on Patino's
role in the offense. We affirm in part, reverse in part, and
remand for resentencing.
FACTS
On July 18, 1994, Arkansas-based INS agent John Stansel
received a call from a confidential informant (CI) who informed him
that ten illegal aliens, including the CI's brother Cesar, had been
smuggled to Houston. The smuggler wanted $700 to release Cesar.
Agent Stansel gave the CI an undercover telephone number to pass
along to Cesar.
Three days later, Roberto Valtierra-Acevedo (Valtierra-
Acevedo) called Agent Stansel at the undercover number and asked to
speak with the CI. Agent Stansel responded that the CI was out of
town and asked Valtierra-Acevedo to take Cesar to Little Rock,
Arkansas. Valtierra-Acevedo refused to deliver Cesar to Arkansas,
requested $700 for Cesar's release, and left his Houston telephone
number with Stansel.
Stansel passed the information on to the INS in Houston.
Thereafter, INS Agent Balentin1 called Valtierra-Acevedo's Houston
number, claiming to be the CI's friend. Patino answered the
telephone and told Balentin that he was the person Balentin needed
to speak with about Cesar's release. Patino instructed Balentin to
go to a designated gas station and then to call back. Patino also
told Balentin that two other aliens were being held.
When Balentin called from a location near the gas station,
Patino instructed Balentin to meet him in front of a department
store at that location. Patino stated he would arrive in a red
1
The PSR refers to Agent "Valentin." The record clarifies
that the Agent's correct name is "Balentin."
2
truck with Mexican plates. Shortly thereafter, Patino, co-
defendant Eriban Cardenas-Aguirre (Cardenas-Aguirre), and Cesar
arrived in a red truck. Patino got out, introduced himself (using
an alias) and pointed to Cesar, who was still seated in the truck
with Carednas-Aguirre. Carednas-Aguirre got out of the truck and
was introduced as a friend of Patino's. After Balentin gave the
prearranged signal, all three men were arrested.
INS officers then proceeded to a Houston residence (the
Leedale house) where Patino's sister, co-defendant Hermelinda
Patino-Cardenas, answered the door and consented to a search of the
house. Although she claimed that there were no aliens in the
house, INS agents discovered two aliens hiding in one of the rooms
and took those individuals into custody. The next day Hermelinda
Patino-Cardenas and Roberto Valtierra-Acevedo were also arrested.
INS interviews with the three smuggled aliens revealed that
they, along with several other aliens, paid "recruiters" in Neuvo
Laredo, who put them in contact with a smuggler. The smuggler
arranged their crossing of the Rio Grande River into Laredo, Texas.
Next the aliens rode in a blue pickup for about an hour, followed
by a long walk through brush, followed by another two hour ride in
the same blue pickup. Along Highway 59 heading east, the blue
pickup stopped and two of the aliens (but not Cesar) were
transferred to Patino's red pickup. All three aliens identified
Patino as the man who drove the red pickup. Both trucks then drove
to the Leedale house in Houston.
3
The next day, the aliens witnessed Patino receiving a large
sum of money for the release of five of the aliens in their group.
Patino told the remaining aliens that they would be returned to
Mexico if they could not pay $500 each for their release. All
three aliens claimed that both Patino and Robert attempted to
contact people to arrange for the aliens' release. One of the
aliens stated that seven other aliens smuggled in their group had
been "paid for and delivered" before the INS arrived.
PROCEDURAL HISTORY
Patino was charged in count 1 of a four count indictment with
transporting aliens within the United States, in violation of 8
U.S.C. § 1324(a)(1)(A)(ii).2 Patino pleaded guilty without the
benefit of a plea bargain on September 19, 1994.
A presentence Investigation report (PSR) was filed, and Patino
filed timely objections based on the PSR's failure to adjust
downward two levels for acceptance of responsibility, and to a two
level increase for Patino's role in the offense. The probation
department then filed an addendum to the PSR, stating that Patino
had not admitted all of the conduct comprising the offense charged
in count 1.
When Patino appeared for sentencing, the district court judge
overruled Patino's objections and imposed a sentence in accordance
with the PSR, which recommended an adjusted offense level of 13 and
2
Cardenas-Aguirre, who went with Patino to deliver Cesar, was
also charged in count 1. Counts 2, 3 and 4 charged Roberto
Valtierra-Acevedo and Hermelinda Patino-Cardenas with violations of
8 U.S.C. § 1324(a)(1)(c) for harboring the three aliens at the
Leedale house.
4
a criminal history category of IV. Accordingly, Patino was
sentenced to 27 months incarceration and a $2500 fine, to be
followed by a term of three years supervised release. This appeal
followed.
ACCEPTANCE OF RESPONSIBILITY
Patino argues that the district court erred by denying him a
two-level downward adjustment for acceptance of responsibility
because he pleaded guilty and admitted all of the conduct
comprising the offense charged. Patino is not entitled to a
downward adjustment simply because he pleaded guilty. U.S.S.G. §
3E1.1 (1994). Patino's entitlement to an adjustment for acceptance
of responsibility depends upon whether he effectively (1) admitted
the conduct comprising the offense of conviction and (2) admitted
or did not falsely deny additional relevant conduct, for which he
was accountable. United States v. Vital, 68 F.3d 114, 120 (5th
Cir. 1995), cert. denied, 114 S. Ct. 2151 (1994); United States v.
Smith, 13 F.3d 860, 866 (5th Cir. 1994); see also U.S.S.G. § 3E1.1,
comment. n.1(a) (1994); § 1B1.7 (1994) (failure to follow guideline
commentary can constitute an incorrect application of the
guidelines requiring reversal on appeal). Patino was not required
to volunteer or affirmatively admit relevant conduct beyond the
conviction offense. A defendant can "remain silent with respect to
relevant conduct beyond the offense of conviction without affecting
his ability to obtain a reduction." Id. Patino could not,
however, falsely deny or frivolously contest relevant conduct that
the court determined to be true. Id.
5
During the presentence investigation, Patino submitted the
following statement through counsel:
I have consulted with my attorney and understand the
importance of this statement. I committed the offense
as alleged in Count 1 of my indictment.
On or about July 21, 1994, I transported Cesar
Ramirez-Alvarez who was in this country illegally from
the residence at 6426 Leedale in Houston, Texas to the
parking lot in front of the Weiners store at 11703 Eastex
Freeway at Houston, Texas using a red GMC pickup truck.
I understand the crime I committed and my actions
are sinful. I have caused great pain and embarrassment
to my family. I wish I could go back in time and not
have committed this crime. I miss my family and wish I
could be with them. Yet, I understand that I must be
punished.
The PSR recommended no adjustment for acceptance of responsibility
and Patino objected. In those objections, Patino further admitted
that he "drove two of the aliens into Houston and attempted to
collect money obviously due to other individuals" for the aliens'
release. The probation department responded with an addendum to
the PSR, arguing that Patino was not entitled to an adjustment
because Patino had not admitted all of the conduct comprising the
offense. Specifically, the probation department claimed that
Patino failed to admit that he negotiated for and received fees for
the release of some of the aliens.
At sentencing, the probation department expressed the opinion
that § 1324 offenses "typically" involve the receipt of fees by one
or more people. Based on that observation alone, the probation
department concluded that Patino had not accepted responsibility
"for the conduct comprising the offense of conviction." Without
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further discussion, the district court adopted the PSR, denying
Patino an adjustment for acceptance of responsibility.
The government's position is that Patino failed to admit or
falsely denied that he (1) transported aliens to Houston; (2)
negotiated for Cesar's release; and (3) collected fees for the
release of other aliens. Count 1 of the indictment alleges that
Patino transported Cesar "within the United States . . . to the
parking lot in front of the Weiner's store located at 11703 Eastex
Freeway in Houston, Texas in a pickup truck." The indictment does
not charge Patino with transporting the other two aliens to Houston
or with accepting fees for the release of any aliens. Therefore,
the acts identified by the government constitute additional conduct
relevant to the offense, rather than conduct comprising the offense
charged.
Patino admitted that he drove the truck to Houston and that he
attempted to collect fees for the release of the aliens. Patino
did not deny that he actually received those fees. Further,
Patino's statement that any money he collected would have been for
the benefit of other individuals, which was offered in response to
the probation department's position that Patino played an
leadership role in the offense, does not amount to a false or
frivolous denial of additional conduct relevant to Patino's § 1324
offense.
For the first time on appeal, the government also argues that
Patino was not entitled to an adjustment for acceptance of
responsibility because he falsely denied additional relevant
7
conduct relating to his leadership role in the offense. Patino had
no duty to affirmatively admit those facts. § 3E1.1 comment.
n.1(a). Further, Patino did not frivolously deny those facts in
his objections to the PSR. Patino objected to the legal
characterization (leadership role) given his actions; he did not,
in that document or at sentencing, deny any facts stated in the PSR
concerning his role.3 Further, Patino's failure to acknowledge his
leadership role was not offered as a justification for denying an
acceptance of responsibility adjustment, either in the PSR or at
sentencing. The government cannot now raise Patino's responses,
which were offered to controvert the probation department's
position that he played a leadership role and which are not
inconsistent with the facts stated in the PSR, to justify the
district court's refusal to adjust for acceptance of
responsibility.
The determination of the sentencing judge on acceptance of
responsibility is entitled to great deference on review. U.S.G.G.
§3E1.1 comment. n. 5; see also United States v. Vital, 68 F.3d 114,
120 (5th Cir. 1995). Nonetheless, failure to depart downward for
acceptance of responsibility constitutes reversible error when that
decision is made without any foundation. United States v.
Calverly, 11 F.3d 505, 514 (5th Cir. 1993), opinion reinstated and
adopted on reh'g, 37 F.3d 160 (5th Cir. 1994), cert. denied, 115 S.
Ct. 1266 (1995). Patino adequately admitted the conduct comprising
3
Patino's primary argument was that because co-defendants
engaged in factually similar conduct, he did not play a leadership
role.
8
the offense and either admitted or did not falsely deny the
additional relevant conduct identified by the government. There
was, therefore, no foundation for the district court's refusal to
grant a two-level adjustment for acceptance of responsibility and
Patino must be resentenced.
PATINO'S ROLE IN THE OFFENSE
Patino also claims that the district court erred by increasing
his base offense level two points for his aggravating role in the
offense pursuant to guideline § 3B1.1(c) (providing for two level
increase if defendant was an organizer, leader, manager or
supervisor in any criminal activity involving fewer than 5
participants). The district court's factual determination that
Patino played a leadership role in the offense is reviewed for
clear error. United States v. Narvaez, 38 F.3d 162, 166 (5th Cir.
1994), cert. denied, 115 S. Ct. 1803 (1995).
Relative to the offense charged, that of transporting Cesar to
the department store, the PSR states that Patino answered the INS
agent's telephone call, identified himself as the person to talk
with, arranged for the rendezvous with the INS agent at the
department store, drove the truck transporting Cesar to the
rendezvous point to arrange Cesar's release, and then exited the
truck and approached the agent first.
Relevant conduct beyond the charged offense may also be
considered for purposes of determining whether an enhancement on
the basis of the defendant's role is appropriate. §3B1.1 (1994)
intro. comment. The PSR establishes that Patino was the party
opin\94-20914.opn
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identified as responsible, along with Valtierra-Acevedo, for
contacting the friends and relatives of aliens about their release.
Patino transported aliens, from a point outside Houston, to the
Leedale house. Patino also collected fees from third parties for
the release of smuggled aliens.
Patino argues that other co-defendants were equally involved
in the offense. As to the charged offense, there are no facts
suggesting that Patino's only co-defendant in count 1 was similarly
involved in the offense. The record clearly supports the district
court's determination that Patino played a leadership role in the
charged offense and the district court's two-level enhancement is
affirmed.
CONCLUSION
The district court's determination that Patino played a
leadership role in the offense, which justified a two-level
enhancement is AFFIRMED.
The district court's determination that Patino failed to
accept responsibility, which justified its refusal to adjust
downward two levels is REVERSED, Patino's sentence is VACATED, and
the case is REMANDED for resentencing.
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