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USCA1 Opinion
June 16, 1994 UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 93-2306
UNITED STATES,
Appellee,
v.
CLIFFORD K. TAPIA,
Defendant, Appellant.
____________
ERRATA SHEET
The opinion of this court issued on June 9, 1994, is amended
as follows:
Page 6, paragraph 2, line 2: Delete "a" after "for."
June 9, 1994 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 93-2306
UNITED STATES,
Appellee,
v.
CLIFFORD K. TAPIA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
__________________________
____________________
Before
Selya, Circuit Judge,
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Coffin and Bownes, Senior Circuit Judges.
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Marie T. Roebuck, with whom John F. Cicilline was on brief for
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appellant.
Margaret E. Curran, Assistant United States Attorney, with whom
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Edwin J. Gale, United States Attorney, and Gerard B. Sullivan,
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Assistant United States Attorney, were on brief for appellee.
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BOWNES, Senior Circuit Judge. This appeal asks us
BOWNES, Senior Circuit Judge.
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to determine whether the district court failed to consider
subsection (b)(1) of U.S.S.G. 3E1.1 in denying defendant-
appellant, Clifford Tapia, an additional one-level reduction
in his offense level for acceptance of responsibility.1
Because it is likely that the court never considered Tapia's
eligibility for the extra reduction under 3E1.1(b)(1), we
vacate his sentence and remand so that the district court can
apply that guideline.
I.
I.
BACKGROUND
BACKGROUND
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In February 1993 a grand jury returned a four-count
indictment that charged Tapia with possession of heroin with
(1) intent to distribute in violation of 18 U.S.C.
841(a)(1); (2) possession of a firearm during and in relation
to a drug trafficking crime in violation of 18 U.S.C.
924(c); (3) being a felon in possession of a firearm in
violation of 18 U.S.C. 922(g); and (4) possession of a
firearm with an altered serial number in violation of 18
U.S.C. 922(k). Tapia informed the government that he was
willing to plead guilty to the first, third and fourth counts
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1. The November 1993 edition of the guidelines applied in
this case. See United States v. Quinones, No. 93-1601, slip
___ _____________ ________
op. at 2 n.1 (1st Cir. May 20, 1994) (absent ex post facto
considerations guidelines in effect at time of sentencing
control). All Sentencing Guidelines references in this
opinion are to that edition.
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in consideration for the dismissal of count two, the 924(c)
count, which carried a mandatory minimum jail term of five
years. The government declined to accept this conditional
plea, and Tapia proceeded to trial on all four counts.
Trial commenced on September 27, 1993. On the
second day of trial, after the government had rested, the
parties entered into a plea agreement whereby Tapia agreed to
plead guilty to counts one, three and four, in return for the
government's dismissal of count two, the 924(c) count. On
November 23, 1993, the district court sentenced Tapia to a
prison term of forty-one months.2 This appeal ensued.
II.
II.
DISCUSSION
DISCUSSION
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Tapia contends that the district court erred in
failing to grant him an additional one-level reduction for
acceptance of responsibility. Tapia received a two-level
reduction under U.S.S.G. 3E1.1(a), but claims he was also
entitled to an additional reduction of one level under
U.S.S.G. 3E1.1(b), which requires the extra reduction if
the defendant either "(1) timely provides complete
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information to the government concerning his own involvement
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in the offense; or (2) timely notifies authorities of his
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2. The district court calculated an adjusted offense level
of 18 and criminal history category of III. This produced a
guideline sentencing range of thirty-three to forty-one
months.
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intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and permitting the
court to allocate its resources efficiently." (Emphasis
added.) The thrust of Tapia's argument on appeal is that the
district court denied him the additional one-level deduction
without ever considering subsection (b)(1).3
The issue of whether a defendant has accepted
responsibility is "fact-dominated." United States v.
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Morillo, 8 F.3d 864, 871 (1st Cir. 1994); United States v.
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Donovan, 996 F.2d 1343, 1346 (1st Cir. 1993). It follows
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that we generally review a district court's decision to
withhold a three-level reduction under 3E1.1(b) only for
clear error. Morillo, 8 F.3d at 871; Donovan, 996 F.2d at
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1346. Where, however, as is the case here, an improper
application of the Guidelines is alleged, no such deference
is warranted. United States v. Tavano, 12 F.3d 301, 307 (1st
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Cir. 1994). The question is not whether Tapia satisfied
3E1.1(b)(1)'s strictures, but whether the district court
addressed the issue at all.
The government contends that the district court
"expressly address[ed]" the 3E1.1(b)(1) question "and
implicitly found the Defendant's cooperation less than
complete." This characterization of the district court's
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3. Tapia recognizes that he is ineligible for the reduction
under 3E1.1(b)(2).
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ruling is both logically inconsistent and contrary to the
record. It is clear that, despite defense counsel's explicit
request that the district court consider 3E1.1(b)(1), the
court focussed solely on the timing of Tapia's plea, i.e.,
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3E1.1(b)(2), in declining to award the additional one-level
reduction for acceptance of responsibility:
It seems to me that the significant
language of this guideline is the word
"timely" and that it must be a rare
circumstance indeed that where a
Defendant pleads, not admits, but pleads
to a charge after trial has commenced,
indicates that the trial was required for
purposes of bargaining with the
government with respect to another charge
to which he did not plead ultimately,
that could hardly be said to be timely
under any circumstances.
Transcript of Sentencing Hearing at 11-12. In denying Tapia
the additional one-level reduction, the court never made even
a veiled reference to the timeliness or the completeness of
the information provided by Tapia to the government, which is
the express subject of 3E1.1(b)(1). The government
essentially asks us to play the role of mind readers and
divine something in the district court's remarks that is
simply not there. We decline to do so.
It seems probable that the district court's
oversight stemmed from a similar deficiency in the
presentence investigation report (PSI). The initial PSI
recommended a two-level reduction for acceptance of
responsibility and found that Tapia was not entitled to a
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three-level reduction because he did not enter a plea of
guilty at a sufficiently early point in the process so that
the government could avoid preparing for a trial, and the
court could schedule its calendar efficiently. Tapia filed
an objection to the report claiming that he was entitled to
the extra reduction because, inter alia, "he provided
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complete information to the government concerning his own
involvement in the offense." An addendum to the PSI
responded that Tapia was not entitled to the extra one-level
reduction because he did not enter a guilty plea until the
second day of trial, and therefore did "not allow[] the court
to use its resources efficiently." The PSI's failure to
address Tapia's 3E1.1(b)(1) argument was repeated by the
sentencing judge.
Because the district court failed to consider
Tapia's eligibility for an extra one-level reduction pursuant
to U.S.S.G. 3E1.1(b)(1), Tapia's sentence cannot stand.4
We therefore vacate the sentence and remand the case so that
We therefore vacate the sentence and remand the case so that
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the district court may consider whether Tapia is eligible for
the district court may consider whether Tapia is eligible for
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the additional reduction of one level under 3E1.1(b)(1).
the additional reduction of one level under 3E1.1(b)(1).
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4. We express no opinion as to the merits of Tapia's claim
that he is entitled to the additional one-level reduction
available under that guideline.
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Document Info
Docket Number： 93-2306
Filed Date： 6/20/1994
Precedential Status： Precedential
Modified Date： 9/21/2015