United States v. Orellana ( 1996 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 95-2139



                                    UNITED STATES,



                                      Appellee,



                                          v.



                WILLY MARROQUIN, a/k/a Willy Adolfo Marroquin Mendez,



                                Defendant, Appellant.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                 [Hon. Francis J. Boyle, Senior U.S. District Judge]
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                                 ____________________



                                        Before



                                 Cyr, Stahl and Lynch,

                                   Circuit Judges.
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            Thomas A. Grasso on brief for appellant.
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            Sheldon Whitehouse,  United States Attorney,  Margaret E.  Curran,
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        Assistant  U.S.  Attorney, and  Stephanie  S.  Browne, Assistant  U.S.
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        Attorney, on  Motion For Summary Disposition and Memorandum In Support

        Of Motion For Summary Dispositon for appellee.

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                                  December 27, 1996

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                 Per  Curiam.    Upon   careful  review  of  the  record,
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            defendant's brief, and the government's motion asking that we



            summarily   remand  to   the   district  court   for  further



            proceedings, we agree that oral argument is not necessary and



            that  the  requirements  of  U.S.S.G.    3E1.1(b)  should  be



            reconsidered on remand.



                 Section   3E1.1(b)   provides   an  additional   1-level



            reduction if the defendant qualifies for the initial decrease



            under    3E1.1(a), has  an offense level  of 16  or more, and



            either:



                      (1)  timely provid[es] complete  information to the

                      government  concerning his  own involvement  in the

                      offense;  or (2)  timely notif[ies]  authorities of

                      his 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.



            Once the  reduction under    3E1.1(a) has  been allowed,  the



            only relevant  inquiry is whether the  defendant meets either



            of the criteria of    3E1.1(b).  United States  v. Talladino,
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            38 F.3d 1255, 1266 (1st Cir. 1994).



                 Here,  the  district  court   granted  the      3E1.1(a)



            reduction and made no findings as to the   3E1.1(b) criteria.



            The  government did not object  in the district  court to a



            3E1.1(b) reduction,  and now the government  states that "The



            record suggests  no obvious  basis for denying  the one-level



            reduction."











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                 In  these  circumstances,   we  conclude   that  it   is



            appropriate  to vacate the  sentence and remand  the cause to



            the district  court for resentencing  after consideration  of



            the    3E1.1(b) criteria.   The district court  may order any



            further proceedings it deems necessary before resentencing.



                 Sentence  vacated and  cause  remanded  to the  district
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            court for further proceedings consistent with this opinion.
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