United States v. Jesus Rodriguez ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 2011 Decided March 9, 2012
Reissued April 11, 2012
No. 10-3017
UNITED STATES OF AMERICA,
APPELLEE
v.
JESUS RODRIGUEZ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cr-00344-1)
A. J. Kramer, Federal Public Defender, argued the cause
for the appellant.
Peter S. Smith, Assistant United States Attorney, argued
the cause for the appellee. Ronald C. Machen Jr., United
States Attorney, and Roy W. McLeese III and Chrisellen R.
Kolb, Assistant United States Attorneys, were on brief.
2
Before: HENDERSON, Circuit Judge, and WILLIAMS and
GINSBURG, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Jesus
Rodriguez (Rodriguez) appeals his sentence of 72-months’
imprisonment resulting from his conviction on one count of
distributing 500 grams or more of cocaine in violation of 21
U.S.C. § 841(a)(1) and 841(b)(1)(B)(ii). For the reasons set
forth below, we remand to the district court for further
sentencing proceedings consistent with this opinion.
I.
On October 23, 2008, Rodriguez offered to sell a
confidential source (CS) of the Narcotics and Special
Investigations Division of the Metropolitan Police
Department (MPD) one kilogram of cocaine for $28,000. The
next day, Rodriguez met the CS in a parking lot in Northeast
Washington, D.C., entered his vehicle and handed him a black
plastic bag full of 1,004 grams of cocaine. Rodriguez was
promptly arrested by a MPD surveillance team.
On April 20, 2009, pursuant to a plea agreement and
proffer of evidence, Rodriguez pleaded guilty to a one-count
indictment charging him with the distribution of 500 grams or
more of cocaine in violation of 21 U.S.C. § 841(a)(1) and
841(b)(1)(B)(ii). The United States Probation Office prepared
a presentence report (PSR) calculating Rodriguez’s base-
offense level at 26, with a three-level downward adjustment
for acceptance of responsibility pursuant to section 3E1.1(b)
of the United States Sentencing Guidelines (U.S.S.G. or
Guidelines), lowering his offense level to 23. His Criminal
History Category was I. Given the adjustments and
Rodriguez’s criminal history, the PSR recommended a
Guidelines range of 46-57 months. The offense, however, by
statute carries a mandatory minimum sentence of 60 months’
3
imprisonment. 21 U.S.C. § 841(b)(1)(B)(ii). In his initial
sentencing memorandum filed on June 10, 2009, Rodriguez
argued for a “sentence below the statutory minimum
sentence” because “[he] has met the five requirements of the
safety[-]valve provision.” Def.’s Mem. in Aid of Sentencing
at 2-3, United States v. Rodriguez, Cr. No. 08-344 (D.D.C.
June 10, 2009). The safety-valve provision, 18 U.S.C.
§ 3553(f), incorporated into the Guidelines at section 5C1.2,
permits the district court to impose a sentence below the
statutory minimum if it finds:
(1) the defendant does not have more than
1 criminal history point . . . ;
(2) the defendant did not use violence or
credible threats of violence or possess a
firearm or other dangerous weapon (or induce
another participant to do so) in connection with
the offense;
(3) the offense did not result in death or
serious bodily injury to any person;
(4) the defendant was not an organizer,
leader, manager, or supervisor of others in the
offense . . . and was not engaged in a
continuing criminal enterprise . . . ; and
(5) not later than the time of the
sentencing hearing, the defendant has
truthfully provided 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, but the fact that the
defendant has no relevant or useful other
information to provide or that the Government
is already aware of the information shall not
4
preclude a determination by the court that the
defendant has complied with this requirement.
18 U.S.C. § 3553(f).1 In response, the Government argued
that, while Rodriguez met the first four requirements, he had
failed to fully and truthfully debrief and thus was not entitled
to safety-valve relief. Gov’t’s Mem. in Aid of Sentencing at
4-8, United States v. Rodriguez, Cr. No. 08-344 (D.D.C. July
15, 2009). Specifically, the Government averred that
Rodriguez withheld information regarding Gumesindo
Maldunado (Maldunado), who was also arrested at the scene
of the crime and who, the MPD believed, was Rodriguez’s
supplier.2
Because of the safety-valve dispute, the district court set
an evidentiary hearing for July 28, 2009 to determine whether
Rodriguez had in fact truthfully disclosed all information and
evidence to the Government. During the hearing, Rodriguez
testified that Maldunado had nothing to do with the drug deal.
Rodriguez explained that Maldunado was his boss in a
landscaping business and had followed Rodriguez to the
parking lot so that Rodriguez could collect money from a
friend and then follow Maldunado to a job site immediately
thereafter. Rodriguez said that Maldunado had no idea that
Rodriguez had entered the CS’s car to sell cocaine.
1
For a drug offender like Rodriguez, the provision carries
another important benefit—namely, the relevant drug guideline
(U.S.S.G. 2D1.1(b)(16)) grants a defendant who meets the safety
valve requirements a two-point decrease in the offense level.
2
On the day of the arrest, Maldunado, who was driving a Nissan
Altima, followed Rodriguez’s work truck into the parking lot.
Maldunado parked the car almost directly behind the CS’s car. He
then exited his vehicle and paced behind the CS’s car during the
drug deal until he was arrested by MPD officers.
5
The Government presented testimony from MPD
Detective Erick Alvarado (Alvarado) and Officer Derrick
Starliper (Starliper) which cast doubt on the veracity of
Rodriguez’s testimony. Alvarado and Starliper both testified
that Rodriguez had told the CS that his cocaine supplier
would accompany him to the sale because the supplier did not
trust Rodriguez with such a large sum of money. Both officers
further testified that Maldunado had exited his car and paced
behind the CS’s car while Rodriguez was inside. Starliper also
testified that MPD officers recovered a loaded pistol and
approximately $4,000 in cash from Maldunado’s vehicle on
the day of his arrest.
The district court credited the officers’ description of
Maldunado’s conduct: “I think that all of the circumstances
leading up to the arrest suggest that Mr. Maldunado was there
to make sure . . . that Mr. Rodriguez didn’t run off with his
drugs and . . . that he receive the [money].” Tr. of Sentencing
at 62, United States v. Rodriguez, Cr. No. 08-344 (D.D.C.
July 28, 2009). It then found that Rodriguez had not fully and
truthfully debriefed and was not entitled to safety-valve relief.
It further suggested that an increase in the offense level for
obstruction of justice pursuant to U.S.S.G. § 3C1.1 might be
warranted given Rodriguez’s false testimony during the
sentencing hearing and asked both parties to submit
supplemental sentencing memoranda on the obstruction of
justice issue.
On August 12, 2009, the Probation Office prepared a
revised PSR, recommending a two-point increase in the
offense level and raising the applicable Guidelines range to
60-71 months based on Rodriguez’s obstruction of justice
during the safety-valve hearing. See U.S.S.G. § 3C1.1.3 The
3
The notes to this section state that the “adjustment applies if
the defendant’s obstructive conduct . . . occurred with respect to the
6
Government filed a supplemental sentencing memorandum,
arguing that, in light of Rodriguez’s false testimony, he
should also lose the acceptance of responsibility decrease.
According to the Government, then, his adjusted Guidelines
range should be 78-97 months. Rodriguez responded that the
obstruction of justice increase should not apply but that the
acceptance of responsibility decrease should so that the
Guidelines range should be 46-57 months.
At some point thereafter, Rodriguez met with the
Government for a final debriefing. Although neither the exact
date nor the content of the discussion is in the record, the
meeting prompted the Government to submit an additional
supplemental sentencing memorandum to the court. In the
memorandum, the Government explained:
[A]fter more than nine months of dissembling,
the [D]efendant finally debriefed truthfully
with law enforcement authorities. Though this
information was not particularly useful for law
enforcement purposes, the [D]efendant does
deserve some credit for finally being truthful.
Gov’t’s Second Supplemental Mem. in Aid of Sentencing at
2, United States v. Rodriguez, Cr. No. 08-344 (D.D.C. Nov.
10, 2009) (emphases added). The Government further noted
that Rodriguez was eligible for a so-called Smith departure
because of his status as a deportable alien—reducing his
investigation, prosecution, or sentencing of the defendant’s instant
offense of conviction.” U.S.S.G. § 3C1.1 cmt. n.1 (2009). Covered
conduct includes “providing materially false information to a judge
or magistrate.” Id. § 3C1.1 cmt. n.4(f). Information is considered
“material” when “if believed, [it] would tend to influence or affect
the issue under determination.” Id. § 3C1.1 cmt. n.5.
7
sentence by “up to six months of incarceration.” Id.4 Given
Rodriguez’s “truthful, albeit late, debriefing” and his “status
as a deportable alien,” the Government asked for “a period of
incarceration of 72 months.” Id.
On November 17, 2009, the district court held a hearing
at which it appeared ready to impose sentence. See Minute
Order, United States v. Rodriguez, Cr. No. 08-344 (D.D.C.
Nov. 17, 2009) (“sentencing scheduled for this day []
rescheduled”). The court first asked the Government if
Rodriguez had been “successfully debriefed.” See Hearing at
4, United States v. Rodriguez, Cr. No. 08-344 (D.D.C. Nov.
17, 2009). The Government responded: “I wouldn’t say he
successfully debriefed. I think he finally accepted
responsibility and came clean about all aspects of the
transaction.” Id. (emphasis added). The district court then
asked the Government its position on the acceptance of
responsibility adjustment. The Government opposed the
adjustment “in light of the perjured testimony during the
sentencing hearing.” Id. Nonetheless, given that Rodriguez
finally “came clean” and was eligible for a Smith departure,
the Government recommended a sentence of 72 months—the
bottom end of the 78-97 range it had originally proposed with
the six-month downward departure as a deportable alien. The
court then discovered that Rodriguez had not yet read the
revised PSR because it was provided to him in English, which
he could neither speak nor read. The court elected to postpone
sentencing so that the PSR could be translated into Spanish,
Rodriguez’s native language.
4
See United States v. Smith, 27 F.3d 649, 655 (D.C. Cir. 1994)
(because deportable alien is not eligible for supervised release and
other programs under 18 U.S.C. § 3624(c), court may depart
downward to account for “fortuitous increase in the severity of his
sentence”).
8
On February 19, 2010, the district court held a long-
postponed sentencing hearing. At the hearing, the
Government renewed its request for a 72-month sentence. It
explained that it had held four debriefing sessions with
Rodriguez. During the first three sessions, Rodriguez had
repeatedly lied to the Government. But shortly after the July
28, 2009 safety-valve hearing, Rodriguez told the
Government that “he wanted to come clean and he wanted to
tell [] the truth.” Sentencing Hearing at 6-7, United States v.
Rodriguez, Cr. No. 08-344 (D.D.C. Feb. 19, 2010). At that
time, “[w]e had a fourth debriefing where we believe he was
more forthcoming but he still was not providing us the
information we felt was credible and necessary [so] that we
could use him as a cooperator.” Id. at 7. The Government
recognized Rodriguez was a deportable alien eligible for a
Smith departure but argued that his eleventh-hour truthful
debriefing and the Smith departure should be balanced against
Rodriguez’s perjury during the safety-valve hearing and his
failure to accept responsibility for his crime.
Rodriguez’s counsel countered that, although Rodriguez
had been “less than fully forthcoming in earlier debriefings,”
he had done so out of concern for his safety and that of his
family. Id. The lawyer emphasized that Rodriguez was ready
and willing to cooperate further with the Government: “[A]t
this rather late time, for whatever it’s worth, [Rodriguez is]
willing to come forward with further debriefing perhaps [to]
try to undo some of the less than full debriefing that he was
party to in the past.” Id. at 7-8. The Court then asked for
Rodriguez’s allocution and Rodriguez declared:
First, I would like to apologize to you and to
everyone present, to the American government
for having made this mistake . . . . And on my
part, I wanted to cooperate but perhaps it was a
bit too late, but . . . I couldn’t do that because
9
there were people who were very close to me
and one always has the fear that something
might happen to you and now I know that it’s
too late. There’s nothing to be done about it,
but as I said to the prosecutor, if my help is
required, I am here, and that’s all.
Id. at 13.
With no mention of the safety valve or corresponding
two-level decrease under U.S.S.G. § 2D1.1(b)(16), the court
imposed Rodriguez’s sentence. It found that Rodriguez had
provided “materially false” testimony on a “critical issue”
during the July 28, 2009 safety-valve hearing and that his
offense level should be increased two points for obstruction of
justice. Id. at 15. Because of Rodriguez’s less than truthful
debriefings as well as his testimony during the safety-valve
hearing, the district court denied the acceptance of
responsibility decrease. It thus adopted the Government’s
suggested 78-97 month Guidelines range, applied the six-
month Smith departure and sentenced Rodriguez to 72
months’ imprisonment.
Rodriguez now appeals.
II.
Rodriguez raises four arguments on appeal. First,
Rodriguez argues that his lawyer’s failure to argue for safety-
valve relief amounts to ineffective assistance of counsel in
violation of his Sixth Amendment right. Second, he claims the
district court erred when it failed to raise and apply the safety-
valve provision sua sponte notwithstanding the court had
considered and rejected it at the July 28, 2009 safety-valve
hearing. Third, Rodriguez argues that his sentence is
procedurally defective because the court failed to adequately
outline the applicable U.S.S.G range before imposing
sentence and because it failed to adequately explain the basis
10
of its decision. Finally, he argues that the district court erred
by not decreasing his offense level for acceptance of
responsibility.
We address first whether Rodriguez’s lawyer’s failure to
raise the safety valve issue at the February 19, 2010
sentencing hearing constitutes ineffective assistance of
counsel. We review an ineffective assistance of counsel claim
under the two-part test set out by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668 (1984). To
succeed on such a claim, Rodriguez must show: “(1) ‘that
[his] counsel’s performance was deficient,’ and (2) ‘that the
deficient performance prejudiced the defense.’ ” United States
v. Shabban, 612 F.3d 693, 697 (D.C. Cir. 2010) (quoting
Strickland, 466 U.S. at 687). “Deficient” means that
“ ‘ “counsel’s representation fell below an objective standard
of reasonableness.” ’ ” United States v. Goodwin, 594 F.3d 1,
4 (D.C. Cir. 2010) (quoting Smith v. Spisak, 130 S.Ct. 676,
685 (2010) (quoting Strickland, 466 U.S. at 688)). “Prejudice”
means “ ‘that there is a “reasonable probability that, but for
counsel’s . . . errors, the result of the proceeding would have
been different.” ’ ” Id. (quoting Smith, 130 S.Ct. at 685(quoting Strickland, 466 U.S. at 688)). Ordinarily, an
ineffective assistance of counsel claim cannot be resolved on
direct appeal; there is, however, an exception “in those rare
circumstances where the record is so clear that remand is
unnecessary.” United States v. Soto, 132 F.3d 56, 59 (D.C.
Cir. 1997); see also United States v. Fennell, 53 F.3d 1296,
1303-04 (D.C. Cir. 1995) (ineffective assistance of counsel
claim may be decided on appeal “when the trial record alone
conclusively shows that the defendant is entitled to no relief
. . . [or] when the trial record conclusively shows the
contrary”). On our review, the record conclusively shows that
Rodriguez’s lawyer’s failure to reassert Rodriguez’s
eligibility for safety-valve relief after Rodriguez truthfully
debriefed constitutes ineffective assistance of counsel.
11
As a threshold matter, it seems plain to us that Rodriguez
met all five elements of the safety-valve provision by the time
of the February 2010 sentencing hearing. The Government
concedes that Rodriguez satisfied the first four criteria for
safety-valve relief. Gov’t’s Mem. in Aid of Sentencing at 5,
United States v. Rodriguez, Cr. No. 08-344 (D.D.C. July 15,
2009) (“The defendant meets the first four requirements of the
safety-valve provision, and thus, it is the fifth requirement
which is at issue in this case.”). The fifth criterion requires
that:
not later than the time of the sentencing
hearing, the defendant has truthfully provided
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.
18 U.S.C. § 3553(f)(5) (emphasis added). According to the
Government’s open-court admission during the November 17,
2009 hearing, Rodriguez eventually “came clean about all
aspects of the transaction.” Hearing at 4, United States v.
Rodriguez, Cr. No. 08-344 (D.D.C. Nov. 17, 2009) (emphasis
added). In its second supplemental sentencing memorandum
filed shortly before the November hearing, the Government
noted repeatedly that Rodriguez had fully and truthfully
debriefed: (1) “the defendant . . . debriefed truthfully with law
enforcement authorities”; (2) “defendant does deserve some
credit for finally being truthful”; and (3) defendant should
receive some downward adjustment “[i]n light of . . . the
defendant’s truthful, albeit late, debriefing.” Gov’t’s Second
Supplemental Mem. in Aid of Sentencing at 2, United States
v. Rodriguez, Cr. No. 08-344 (D.D.C. Nov. 10, 2009).
Accordingly, “not later than the [February 2010] sentencing
hearing,” Rodriguez had “truthfully provided . . . . all
12
information and evidence [he] ha[d] concerning the offense,”
18 U.S.C. § 3553(f)(5), and had therefore satisfied the final
element of the safety-valve provision.
We are not persuaded by the Government’s attempt to
use the statements of Rodriguez and his lawyer during the
February 2010 hearing to suggest that Rodriguez was
continuing to withhold information from the Government. See
Appellee’s Br. 28 (“Appellant’s response to the prosecutor
during the sentencing hearing simply underscores the fact that
he had failed to provide the government with complete
information about his offense.”). The statements were made in
arguing for Rodriguez’s eligibility for either an acceptance of
responsibility decrease or substantial assistance reduction
under the Guidelines.5 Both Rodriguez and his lawyer
acknowledged that Rodriguez’s past lies could affect his
eligibility for both.6 But neither Rodriguez’s lawyer nor the
Government tied Rodriguez’s past conduct to the safety-valve
provision. The fact that Rodriguez waited “until the last
minute” to provide the information or that he was “tardy” in
doing so does not preclude him from obtaining safety-valve
relief. United States v. Tournier, 171 F.3d 645, 647 (8th Cir.
1999). The provision does not distinguish “between
defendants who provide the authorities only with truthful
information and those who provide false information before
finally telling the truth.” United States v. Schreiber, 191 F.3d
103, 106 (2d Cir. 1999). It expressly states that a defendant
5
U.S.S.G. § 5K1.1 permits, on the Government’s motion and in
the court’s discretion, a reduction for certain defendants who have
provided “substantial assistance” to the Government.
6
As the Government argued, although Rodriguez had come
clean about the transaction, he was no longer “credible” and thus
could not be used as a “cooperator.” Sentencing Hearing at 6-7,
United States v. Rodriguez, Cr. No. 08-344 (D.D.C. Feb. 19, 2010).
13
must truthfully provide all information “not later than the time
of the sentencing hearing.” 18 U.S.C. § 3553(f)(5); U.S.S.G.
§ 5C1.2(a)(5). Nor does it matter whether the information
provided is particularly useful. See, e.g., United States v.
Gales, 603 F.3d 49, 52 (D.C. Cir. 2010) (safety valve
available to defendant who does “not possess information of
substantial assistance”). When Rodriguez “came clean about
all aspects of the transaction,” he met all five elements of the
safety-valve provision.
It is the defendant’s burden to establish safety-valve
eligibility, see United States v. Mathis, 216 F.3d 18, 29 (D.C.
Cir. 2000) (defendant “bears the burden to establish by a
preponderance of the evidence that he is entitled to safety[-
]valve relief”); United States v. Stephenson, 452 F.3d 1173,
1179 (10th Cir. 2006) (“The defendant bears the burden of
proving by a preponderance of the evidence that he is entitled
to the safety-valve adjustment.”); United States v. Montanez,
82 F.3d 520, 523 (1st Cir. 1996) (“It is up to the defendant to
persuade the district court that he has ‘truthfully provided’ the
required information and evidence to the government.”), and
Rodriguez’s lawyer failed to request safety-valve relief after
Rodriguez truthfully debriefed. Indeed, Rodriguez’s lawyer
suggested that the district court had rejected the safety valve
and that it was off the table. See Sentencing Hearing at 5,
United States v. Rodriguez, Cr. No. 08-344 (D.D.C. Feb. 19,
2010) (“[T]his is a case that’s had a sort of long history . . .
post-plea. . . . [T]here was a safety valve issue. The Court had
a hearing on that and found Mr. Rodriguez not to be credible
on that point.”). Familiarity with the Guidelines is “ ‘a
necessity for counsel who seek to give effective
representation.’ ” United States v. Gaviria, 116 F.3d 1498,
1512 (D.C. Cir. 1997) (per curiam) (quoting United States v.
Day, 969 F.2d 39, 43 (3d Cir. 1992). When a lawyer fails to
raise an applicable provision of the Guidelines, he fails to
provide effective assistance. Soto, 132 F.3d at 59 (“Whether
14
lawyers get the Guidelines wrong by misinterpreting the
implication of a particular provision . . . or by failing
altogether to raise a potentially helpful provision . . . such
drastic missteps clearly satisfy Strickland’s first test: They
amount to errors so serious that counsel was not functioning
as the counsel guaranteed the defendant by the Sixth
Amendment.” (internal quotation marks and citation
omitted)); see, e.g., Bellizia v. Fla. Dep’t of Corr., 614 F.3d
1326, 1329-30 (11th Cir. 2010) (failure to make argument that
would have resulted in below minimum sentence constitutes
deficient performance). Rodriguez’s lawyer was (or should
have been) aware that his client had fully and truthfully
debriefed and there was no “objectively reasonable” or
strategic reason not to argue its applicability.
Moreover, given the applicability of the safety-valve
provision, we believe there is at least a “reasonable
probability” that, had Rodriguez’s lawyer raised it, Rodriguez
would have received a lower sentence. Strickland, 466 U.S. at
694. Our sister circuits have held that once a defendant
satisfies the five requirements, the “district court has no
discretion to withhold its application,” United States v.
Franco-Lopez, 312 F.3d 984, 994 (9th Cir. 2002), and that the
safety-valve provision is “mandatory,” United States v.
Quirante, 486 F.3d 1273, 1275 (11th Cir. 2007) (“The safety-
valve provision . . . is not discretionary. Its plain terms are
plainly mandatory.”).
The post-Booker sentencing scheme, which requires the
district court to determine the Guidelines range before
exercising its discretion, Gall v. United States, 552 U.S. 38,
51 (2007), presupposes that the appropriate range is an
important guide in the exercise of that discretion. Here,
Rodriguez’s offense level adjustment under the safety-valve
provision and corresponding two-point decrease under the
drug guideline would reduce his Guidelines range from 78-97
15
months to 63-78 months. Although Rodriguez received a
sentence of 72 months’ imprisonment—the middle of the 63-
78 months range—the Government’s previous
recommendation had been for a sentence at the bottom of the
original 78-97 months range (and, in fact, six months below
that due to the Smith departure). The court itself noted that it
“normally” reduces the sentence of a deportable alien by six
months under Smith. Sentencing Hearing at 10, United States
v. Rodriguez, Cr. No. 08-344 (D.D.C. Feb. 19, 2010)
(“[G]iving consideration to the Smith departure, six months is
something I normally do.”). On this record, we believe there
is a “reasonable probability” that Rodriguez would have
received a lower sentence had his Guidelines range factored
in the safety valve. Strickland, 466 U.S. at 694. A “reasonable
probability” is all Rodriguez “need show” in order to establish
prejudice. United States v. Weathers, 493 F.3d 229, 238 (D.C.
Cir. 2007).
We next turn to Rodriguez’s claim that the district court
erroneously denied Rodriguez an acceptance of responsibility
decrease. See Appellant’s Br. 26. Because Rodriguez
preserved this claim at the sentencing hearing, our review is
for abuse of discretion. See Gall, 552 U.S. at 46 (issue raised
at sentencing reviewed for abuse of discretion). We review a
purely legal question de novo and the district court’s findings
of fact for clear error, according “due deference” to the
district court’s application of the Guidelines to the facts. Id. at
51; see also United States v. Berkeley, 567 F.3d 703, 711
(D.C. Cir. 2009) (“Because the sentencing judge is in a
unique position to evaluate a defendant’s acceptance of
responsibility[,] . . . the determination of the sentencing judge
is entitled to great deference on review.” (internal quotation
marks and citation omitted, alterations in original)).
Section 3E1.1(a) of the Guidelines provides for a two-
point offense level decrease if “the defendant clearly
16
demonstrates acceptance of responsibility for his offense.” If,
however, the defendant obstructed justice, he is entitled to an
acceptance of responsibility adjustment in an “extraordinary
case[]” only. See U.S.S.G. § 3E1.1, cmt. n.4. Here, neither
party disputes that Rodriguez obstructed justice by testifying
falsely during the July 28, 2009 safety-valve hearing but
Rodriguez argues that his is an “extraordinary case.” We
disagree.
That Rodriguez finally came clean in his fourth
debriefing does not necessarily mean that he accepted
responsibility for his role in the crime. Rodriguez may have
decided to cooperate with the Government to get a sentencing
benefit without fully accepting responsibility for the crime.
See, e.g., United States v. Galbraith, 200 F.3d 1006, 1016 (7th
Cir. 2000) (defendant who testified falsely before finally
pleading guilty at “eleventh hour” did not accept
responsibility). Additionally, the Government’s passing
statement during the November 2009 hearing that Rodriguez
“finally accepted responsibility” for his crime is not
dispositive. Hearing at 4, United States v. Rodriguez, Cr. No.
08-344 (D.D.C. Nov. 17, 2009). Immediately after making
this statement, the Government argued against awarding
Rodriguez an acceptance of responsibility decrease. See id. at
4-5 (Court: “And you’re still seeking a forfeiture of his
acceptance of responsibility adjustment because of the
testimony I didn’t credit.” Government: “Yes, Your Honor,
the earlier sentencing.”). And during the February 2010
sentencing hearing, the Government reminded the court that
Rodriguez had repeatedly lied and dissembled for months
before finally agreeing to cooperate, supporting its argument
that Rodriguez had come clean only in an effort to obtain a
sentencing advantage. It was well within the district court’s
discretion to agree.
17
For the foregoing reasons, we remand to the district court
so that it can reconsider Rodriguez’s sentence in light of the
applicability of the safety-valve provision set forth in 18
U.S.C. § 3553(f) and U.S.S.G § 5C1.2.7
So ordered.
7
Because we conclude that Rodriguez’s lawyer rendered
ineffective assistance by failing to request safety-valve relief, we do
not reach Rodriguez’s claims that the district court should have
applied the safety valve sua sponte or that his sentence was
procedurally defective.