United States v. Yate

176 F.3d 1309, 1999 U.S. App. LEXIS 9989, 1999 WL 324739

Opinion

PER CURIAM:

Defendant Giovani Yate appeals his 120-month sentence for conspiracy to import cocaine in violation of 21 U.S.C. § 963.

This case presents the issue of whether a sentencing court’s finding that a defendant has truthfully admitted the conduct comprising the offense of conviction for purposes of an acceptanee-of-responsibility reduction under U.S.S.G. § 3E1.1, is incompatible with a finding that the defendant has failed to satisfy the requirement of U.S.S.G. § 5C1.2(5) that the defendant truthfully disclose to the government all information and evidence that he has about the offense and all relevant conduct.

A sentencing court’s conclusion that a defendant accepted responsibility under section 3E1.1 does not preclude a finding that the defendant has failed to meet the affirmative-disclosure requirement of section 5C1.2(5): 1 briefly stated, section 5C1.2(5) is a “tell-aii ” provision, demanding a different kind of disclosure than section 3E1.1 demands. 2 See United States v. Sabir, 117 F.3d 750, 752 (3d Cir.1997) (“[T]he acceptance of responsibility provisions in the guidelines plainly do -not subsume all of a defendant’s responsibilities under the safety valve provisions.”); United States v. Arrington, 73 F.3d 144, 149 (7th Cir.1996) (“[T]he admission of responsibility necessary to obtain a reduction under § 3El.l(a) is not necessarily sufficient to satisfy [§ 5C1.2(5) ].”); United States v. Adu, 82 F.3d 119, 124 (6th Cir.1996) (“[T]he fact that the defendant qualified for a two-level acceptance of responsibility reduction under § 3El.l(a) does not establish eligibility for a safety valve reduction under § 5C1.2.”). We therefore AFFIRM Yate’s sentence. 3

AFFIRMED.

1 . We do not decide whether a defendant who has satisfied the requirement of section 5C1.2(5) is entitled to a reduction for acceptance of responsibility: That issue is not before us.

2 . Section 5C1.2(5) requires the defendant to “truthfully provide!] to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan[.]“ In contrast, for an acceplance-of-responsibility reduction, “a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction.... A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain [the reduction,]” as long as the defendant does not falsely deny relevant conduct. U.S.S.G. § 3E1.1, comment. (n.l(a)).

3 .Yate’s other arguments — about the factual sufficiency of his disclosure, a mitigating-role reduction, and a downward departure — lack merit and do not warrant discussion.