United States v. Yate , 176 F.3d 1309 ( 1999 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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FILED
No. 97-5155 U.S. COURT OF APPEALS
-------------------------------------------- ELEVENTH CIRCUIT
05/24/99
D. C. Docket No. 97-25-CR-JAL THOMAS K. KAHN
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GIOVANI YATE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 24, 1999)
Before EDMONDSON and MARCUS, Circuit Judges, and ALARCON*, Senior Circuit Judge.
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* Honorable Arthur L. Alarcon, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
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 acceptance-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-all” provision, demanding a different kind of disclosure
than section 3E1.1 demands.2 See United States v. Sabir, 117 F.3d 750, 752 (3d
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 acceptance-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
2
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 § 3E1.1(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 § 3E1.1(a) does not establish
eligibility for a safety valve reduction under § 5C1.2.”). We therefore AFFIRM
Yate’s sentence.3
AFFIRMED.
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.1(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.
3