United States v. Ernesto Montero , 336 F. App'x 941 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-10524
JULY 14, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 08-10013-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNESTO MONTERO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 14, 2009)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Ernesto Montero appeals his 33-month sentence imposed following his
guilty plea to one count of conspiracy to induce aliens to enter the United States.
Montero argues the district court erred when it refused to grant him a two-point
reduction for acceptance of responsibility at sentencing on the ground his last-
minute plea was not timely. He contends although his plea, offered on the morning
trial was set to commence, was not timely for the purposes of a one-point reduction
under § 3E1.1(b), considerations other than timeliness govern possible reductions
under § 3E1.1(a).
We review for clear error both the district court’s application of the
Sentencing Guidelines and the denial of a reduction of sentence for an acceptance
of responsibility. United States v. Knight, 562 F.3d 1314, 1322 (11th Cir. 2009);
see also United States v. Frank, 247 F.3d 1257, 1261 (11th Cir. 2001) (“A district
court is in a ‘unique position to evaluate’ whether a defendant sufficiently
demonstrates acceptance of responsibility; therefore ‘the determination of the
sentencing judge is entitled to great deference on review.’” (quoting U.S.S.G. §
3E1.1 app. 5.”).
Consistent with the applicable Guideline provisions, the district court ruled
Montero failed to demonstrate his entitlement to an acceptance of responsibility
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reduction. The court found Montero’s plea was not timely1 because Montero did
not offer his plea until the morning his trial was to begin, thus necessitating
significant trial preparation by the government and the transportation of witnesses
from across the state, and inconveniencing the jury pool which was already
assigned to the trial, Montero himself conceded his plea was not timely. The
district court’s reliance on the timing of Montero’s plea and the context in which it
was offered is in full accord with § 3E1.1(a), the explanatory comments
accompanying that section, and the cases interpreting and applying it. Montero has
therefore failed to demonstrate clear error. We conclude the district court’s
decision to deny Montero a two-point reduction for acceptance of responsibility
was not clearly erroneous.
AFFIRMED.
1
The timeliness of a guilty plea is a consideration under both § 3E1.1(a) and (b). See
U.S.S.G. § 3E1.1, comment. n.1 (h) (“In determining whether a defendant qualifies under
subsection (a), appropriate considerations include, but are not limited to, the following: . . . the
timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.”);
U.S.S.G. § 3E1.1, comment. n.6 (“The timeliness of the defendant’s acceptance of responsibility
is a consideration under both subsections, and is context specific.”).
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