United States v. Gonzales

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 6, 1994
• Docket: 93-02521
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 93-2521 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JUAN SAMUEL GONZALES,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas ( April 15, 1994 )

Before GARWOOD, SMITH and DeMOSS, Circuit Judges.

PER CURIAM:

BACKGROUND

On January 24, 1993, Houston Police Department Officer Corley

observed Juan Gonzales and co-defendant Salvador Infante get out of

a cab at the bus terminal. Officer Corley noticed that the pair

visually scanned the area but did not speak to one another.

Gonzales retrieved a blue hardside suitcase from the back of the

cab and carried on his shoulder a gray bag; Infante carried a black

canvas suitcase and a backpack. As Infante was heading to the

ticket line, he turned and motioned for Gonzales to continue to the

back toward the seating area. Corley then observed Gonzales standing against a wall in the seating area staring and rapidly

scanning the waiting area as he clutched the shoulder bag tightly.

Sergeant Ellis and DEA Agent Roach accompanied Corley, but remained

a short distance away as he approached and questioned Gonzales.

Corley walked up to Gonzales, got out his identification, showed it

to him, said he was a police officer, and asked if could talk to

him for a minute; Gonzales immediately dropped the shoulder bag to

the ground and Corley noticed that it sounded very solid unlike

clothing. As Corley asked Gonzales about his travel plans,

Gonzales became more and more nervous. Then Corley asked him if

the bags were his; Gonzales responded that neither bag was his and

that he had never seen them before. Considering the bags

abandoned, Corley searched the bags and found eight kilos of

cocaine in the shoulder bag. Gonzales was arrested; shortly

thereafter, a trained dog alerted to Infante's suitcase; Infante

also disclaimed ownership, but was in possession of the claim check

for the suitcase. The officers found nine kilos of cocaine in the

suitcase.

On February 24, 1993, Gonzales pleaded not guilty at his

arraignment. On March 15th, he filed a motion to suppress the

cocaine seized as the product of a tainted search. In a letter

dated March 22, 1993, counsel for Gonzales asked the Government to

allow Gonzales to make a conditional guilty plea in order that he

might preserve his eligibility for a three-level adjustment under

§ 3E1.1 and his ability to appeal an adverse ruling on the

suppression motion. The Government declined the offer. At the

2 beginning of the trial, the parties agreed to carry the suppression

hearing with a bench trial. The Government called Officer Corley,

Officer Ellis, and Agent Roach as witnesses; Gonzales testified for

the defense. After all of the testimony, the district court denied

the motion to suppress and found the defendant guilty on both

counts. In accordance with § 2D1.1, the probation officer

determined the base offense level to be 34 (at least 15 kilograms

but less than 50 kilograms of cocaine), based on the laboratory

results showing a total of 29.2 kilograms of cocaine seized from

both bags. A two-level adjustment was made for acceptance of

responsibility. Applying a total offense level of 32 to a criminal

history category of III yielded a guideline imprisonment range of

151 to 188 months. At the sentencing hearing, the defendant's

objection to the denial of the additional point for acceptance of

responsibility notwithstanding, the district court adopted the PSR

recommendations and sentenced Gonzales to 168 months on each count

to run concurrently. OPINION

Gonzales argues that the district court erred in refusing to

grant an additional one-level reduction for acceptance of

responsibility pursuant to § 3E1.1(b)(2). This Court reviews a

district court's finding on acceptance of responsibility for clear

error but under a standard of review even more deferential than a

pure "clearly erroneous" standard. United States v. Tello, 9 F.3d

3 1119, 1122 (5th Cir. 1993) (internal citations and quotation

omitted). Appellate review of sentences imposed under the

guidelines is limited to a determination whether the sentence was

imposed in violation of law, as a result of an incorrect

application of the sentencing guidelines, or was outside of the

applicable guideline range and was unreasonable. United States v.

Howard, 991 F.2d 195, 199 (5th Cir.), cert. denied, 114. S.Ct. 395

(1993). Application of the guidelines is a question of law subject

to de novo review. Id.

Section 3E1.1(b) established a tripartite test to determine

entitlement to the additional one-level decrease for acceptance of

responsibility. United States v. Mills, 9 F.3d 1132, 1136 (5th

Cir. 1993). The sentencing court is directed to grant the

additional one-level decrease in the defendant's offense level if

(i) the defendant qualifies for the two-level decrease under §

3E1.1(a) for acceptance of responsibility; (ii) the defendant's

offense level is 16 or higher before the two-level reduction under

§ 3E1.1(a); and (iii) the defendant timely "`assisted authorities'"

by taking "one--but not necessarily both--of two `steps': either

(a) `timely' furnishing information to the prosecution about the

defendant's own involvement in the offense (subsection (b)(1)); or

(b) `timely' notifying the authorities that the defendant will

enter a guilty plea (subsection (b)(2))." United States v. Tello,

9 F.3d at 1124-25. To satisfy the third element of the test1, the

defendant's notification to the Government and the district court

1 Section 3E1.1(b)(1) is not at issue in this case.

4 must be made sufficiently early so that the Government can avoid

preparing for trial and the court is able to manage its calendar

efficiently without taking the defendant's trial into

consideration. Id. at 1125-26; § 3E1.1(b)(2). If the defendant

satisfies all three prongs of the test, the district court is

"without any sentencing discretion whatsoever" to deny the

additional one-level decrease. Mills, 9 F.3d at 1139.

Because Gonzales received the basic two-level downward

adjustment under § 3E1.1(a) and because his offense level prior to

such adjustment was 34, the first two prongs of the test were

satisfied. With respect to the third prong, the district court

considered, but overruled without comment, Gonzales' argument that

the conditional plea offered by his counsel's letter of March 22nd

evinced an intent to notify timely the Government and the court

that he intended to plead guilty. Although Gonzales might have

saved the court some time by agreeing to proceed with a bench

trial, it is undisputed that (i) Gonzales did not at any time enter

an actual guilty plea, and (ii) the suppression hearing was in

effect the substantive equivalent of a full trial, which required

full preparation by the Government and allocation of the court's

resources. See United States v. Morillo, 8 F.3d 864, 872 (1st Cir.

1993) (conditional offer to plead does not meet standard of §

3E1.1(b)(2), because until the contingency is removed, the

prosecution must still prepare for trial and the court must still

reserve calendar time). Accordingly, the district court did not

5 clearly err in refusing to treat the conditional offer to plead or

the acquiescence to a bench trial as a notification within the

purview of § 3E1.1(b)(2).

AFFIRMED.

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