United States v. Suarez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________

No. 96-21035 Summary Calendar ________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

PABLO SUAREZ, also known as Paul,

Defendant-Appellee.

_______________________________________ Appeal from the United States District Court for the Southern District of Texas (H-96-CR-84-4) ________________________________________ September 10, 1997 Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

The government appeals the district court’s application of

the Sentencing Guidelines, arguing that the district court

erroneously construed the term “offense” as used in U.S.S.G. §

2L1.1(b)(2) to exclude relevant conduct not charged in the

indictment. The government also argues that Pablo Suarez was not

entitled to a two-level reduction for acceptance of

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. responsibility because he limited his responsibility to the

conduct charged in the indictment.

I. RELEVANT CONDUCT

The district court’s application of the Sentencing

Guidelines is reviewed de novo. United States v. Peterson, 101

F.3d 375, 384 (5th Cir. 1996), cert. denied, 117 S. Ct. 1346

(U.S. 1997). The district court’s factual findings, including

what constitutes relevant conduct, is reviewed for clear error.

Id.

The conduct at issue is Suarez’s transportation of illegal

aliens on an occasion not covered or charged in the indictment.

The base offense level for harboring aliens is 9 under §

2L1.1(a). The probation officer concluded that Suarez was

responsible for harboring 21 aliens and therefore increased the

offense level by 2. § 2L1.1(b)(2)(A). The government objected,

arguing that Suarez should have received a 4-level increase

pursuant to § 2L1.1(b)(2)(B) for transporting at least 26 aliens.

According to the government, six of those aliens had been

transported prior to the period charged in the indictment.

The district court apparently construed the specific offense

characteristic under § 2L1.1(b)(2)(A) to include only the offense

charged in the indictment. Consequently, the court found it to

be “relevant conduct in terms of the kind of activity” in which

Suarez had been involved, but the conduct was not conduct with

2 which he had been charged in the indictment and, thus, would not

be used to determine the specific offense characteristics.2

The court’s narrow interpretation of “offense” is erroneous.

The Guidelines commentary defines “offense” to mean “the offense

of conviction and all relevant conduct under § 1B1.3 (Relevant

Conduct).” § 1B1.1, comment. (n.1(l)) (emphasis added). The

sentencing court is not limited to conduct from the offense of

conviction. § 1B1.3, comment. (backg’d) (“Conduct that is not

formally charged or is not an element of the offense of

conviction may enter into the determination of the applicable

guideline sentencing range.”); see United States v. Mendoza-

Burciaga, 981 F.2d 192, 198 (5th Cir. 1992) (explaining that a

district court must consider a defendant's involvement in

quantities of drugs not charged in the indictment when the

conduct was part of the same course of conduct as the offense of

conviction). Accordingly, the district court’s narrow

interpretation of the “offense conduct” was error. II.

ACCEPTANCE OF RESPONSIBIITY

2 At sentencing, the court stated:

I mean, it’s relevant, but it’s not relevant to the charges in these indictments. It’s relevant to the charges in terms of the kind of activity he has been involved; yeah, I think it’s relevant in terms of addressing whether or not this is something that he has been involved in, but the Court overrules the objections to the extent that it was not conduct with which he was charged in the indictment.

3 The government also argues that Suarez was not entitled to a

two-level reduction for acceptance of responsibility because he

accepted responsibility only for transporting 15 but not more

than 24 aliens. A “defendant who falsely denies, or frivolously

contests, relevant conduct that the court determines to be true

has acted in a manner inconsistent with acceptance of

responsibility.” § 3E1.1, comment. (n.1(a)). There is no

requirement that Suarez must volunteer or affirmatively admit

relevant conduct beyond the conviction offense. Id.; United

States v. Patino-Cardenas, 85 F.3d 1133, 1135 (5th Cir. 1996).

Given that the defendant truthfully admitted the conduct

comprising the offense of conviction, apparently was never asked

about the conduct at issue here, and had no duty to volunteer

this information, the district court’s decision to award a two-

level reduction for acceptance of responsibility was not an abuse

of its great discretion.

VACATED AND REMANDED.