U.S. v. Kimple

• Decision Date: 19 September 1994
• Docket Number: No. 92-10735,92-10735
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel David KIMPLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1409

27 F.3d 1409

UNITED STATES of America, Plaintiff-Appellee, v. Daniel David KIMPLE, Defendant-Appellant.

No. 92-10735.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 9, 1994.

Decided June 24, 1994.

As Amended on Denial of Rehearing Sept. 19, 1994.

Randolph E. Daar, Serra, Perelson, Lichter, Daar & Bustamante, San Francisco, CA, for defendant-appellant.

Samuel Wong, Asst. U.S. Atty., Sacramento, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: POOLE, BEEZER, and T.G. NELSON, Circuit Judges.

Opinion by Judge T.G. NELSON.

T.G. NELSON, Circuit Judge:

I

OVERVIEW

Daniel Kimple (Kimple) appeals his seventy-month sentence imposed after he pled guilty to growing more than 100 marijuana plants. The district court granted a two-level reduction for acceptance of responsibility under U.S.S.G. Sec. 3E1.1(a), but refused to grant an additional one-level reduction for acceptance of responsibility under Sec. 3E1.1(b)(2). We must determine whether the district court erred in refusing to grant the additional reduction for timely acceptance of responsibility. Because we conclude that the Government's defense to Kimple's pretrial motions does not constitute trial preparation for purposes of the timely acceptance reduction under subsection (b)(2), we vacate Kimple's sentence and remand for resentencing.

II

BACKGROUND

The charges against Kimple arise from evidence seized at the California property of his co-conspirator, Ronald Harvey, on August 9, 1991, during the execution of a state search warrant. Evidence seized included 626 marijuana plants growing in a hydroponic system, as well as evidence of prior growing activity. The officers also searched a trailer located on the property in which Kimple was living and found marijuana and seeds. Kimple was arrested a few miles from the Harvey property. A search of the vehicle he was driving produced a carbon dioxide tank which could be used with the gas dispersal system found at the grow site.

A federal grand jury for the Eastern District of California charged Kimple and codefendant Harvey with conspiracy and attempt to manufacture marijuana and manufacturing marijuana, all in violation of 21 U.S.C. Secs. 841(a)(1) and 846, in an indictment filed on August 23, 1991. A superseding indictment was filed on September 27, 1991, and then on December 19, 1991, finding the case complex for purposes of the Speedy Trial Act, the district court granted a continuance for filing pretrial motions.

On January 28, 1992, Kimple joined in two motions filed by Harvey: (1) a motion to disclose the identity of confidential informants, and (2) a motion to suppress evidence seized from the property. Two days later, Kimple filed his own motion to suppress evidence. On February 24, 1992, the district court granted another continuance and once again extended the briefing and hearing schedule of pretrial motions. A second superseding indictment was filed on April 10, 1992. The district court finally held a hearing on the motions on April 30, 1992. Recognizing that it was "something of a close case," the district court found that there was probable cause. In the alternative, the district court found that even if there was not probable cause for the search, the case nonetheless fell within the good faith exception.

The district court set an evidentiary hearing on the remaining issues for June 11, 1992, and then later granted the Government's motion for a continuance to July 9, 1992. At the July 9 hearing, the district court again declared the case complex, requested additional briefing on several remaining issues, and scheduled a hearing on those issues for September 17, 1992. On the September 17 hearing date, before the district court had made its final ruling, Kimple pled guilty to Count Three of the superseding indictment charging him with the manufacture of 626 marijuana plants in violation of 21 U.S.C. Sec. 841(a)(1). ¹

Prior to sentencing, Kimple joined Harvey's objection to the presentence report (PSR) in which both defendants argued that they were entitled to an additional one point reduction in their offense levels for timely

                acceptance of responsibility.  At sentencing on December 3, 1992, the district court granted Kimple a two-level reduction for acceptance of responsibility under U.S.S.G. Sec. 3E1.1(a), but denied the additional one point reduction under the acceptance of responsibility provision (Sec. 3E1.1(b)). 2  He was sentenced to seventy months in prison followed by a four-year term of supervised release.  Kimple appeals contending that the district court erred in denying the additional one-level reduction
                

III

STANDARD OF REVIEW

We review de novo the district court's application of the Sentencing Guidelines and for clear error the district court's factual findings. United States v. Watt, 910 F.2d 587, 589 (9th Cir.1990), disapproved on other grounds, United States v. Anderson, 942 F.2d 606, 614 n. 5 (9th Cir.1991) (en banc) (regarding standard to apply in determining the binding force of Guideline commentary). Whether the defendant is entitled to an acceptance of responsibility reduction is a factual determination also subject to the clearly erroneous standard of review. United States v. Martinez-Gonzalez, 962 F.2d 874, 878 (9th Cir.1992).

IV

DISCUSSION

Kimple contends that the district court erred in refusing to grant an additional one-level reduction for acceptance of responsibility under U.S.S.G. Sec. 3E1.1(b)(2). We agree.

The Guidelines permit the district court to reduce a defendant's offense level by two if he "clearly demonstrates acceptance of responsibility for his offense." Sec. 3E1.1(a) (Nov. 1992). In 1992, the Sentencing Commission amended ³ the acceptance of responsibility provision to entitle the defendant to an additional one-level reduction if he establishes that he: (1) qualifies for the two-level decrease under subsection (a); (2) has an offense level of 16 or greater prior to the operation of subsection (a); and (3) has assisted authorities in the investigation and prosecution of his own misconduct by either (i) timely providing complete information regarding his involvement in the offense to the Government, or (ii) timely notifying the authorities of his intention to enter a guilty plea. Sec. 3E1.1(b) (Nov. 1992). Kimple has satisfied the first two elements of the Guideline provision--he received the two-point acceptance of responsibility reduction and his offense level was 28 prior to the application of subsection (a). As for the third element, Kimple does not argue that he is entitled to an additional one-level reduction under subsection (b)(1) for timely providing complete information to the Government as to his involvement in the offense. Rather, he contends that he is entitled to the additional one-level reduction because he notified the Government of his guilty plea in a timely manner within the meaning of subsection (b)(2). Accordingly, we must determine what constitutes "timely" acceptance of responsibility for purposes of subsection (b)(2), an issue of first impression in this circuit.

Subsection (b)(2) defines timely acceptance in functional, not exclusively temporal, terms. That is, a defendant is entitled to the additional reduction for timely notifying the authorities of his intention to plead guilty if the two goals of that provision are fulfilled: (1) the Government avoids needless trial preparation, and (2) the court is able to allocate its resources efficiently. See Sec. 3E1.1(b)(2). Application Note 6 provides in pertinent part:

For example, to qualify under subsection (b)(2), the defendant must have notified authorities of his intention to enter a plea of guilty at a sufficiently early point in the process so that the Government may avoid preparing for trial and the court may schedule its calendar efficiently.

Sec. 3E1.1, comment. (n. 6) (Nov. 1992) (emphasis added). Note 6 further explains that "[i]n general, the conduct qualifying for a decrease ... under subsection [ (b)(2) ] will occur particularly early in the case." Id. (emphasis added). That provision is also careful to point out, however, that the timeliness consideration is context specific. Id. The timely acceptance provision should not be applied so that the passage of time is the only consideration. Accordingly, when both prerequisites of subsection (b)(2) are satisfied, the reduction is appropriate, even though some period of time may have elapsed. The Fifth Circuit has similarly construed the meaning of the timely acceptance under subsection (b)(2). See United States v. Tello, 9 F.3d 1119, 1125 (5th Cir.1993) (timeliness of notification of intent to plead guilty equated with prosecution's ability to avoid trial preparation and court's ability to allocate its resources efficiently).

The denial of a reduction under subsection (b)(2) is impermissible if it penalizes a defendant who has exercised his constitutional rights. We have held that "in determining a defendant's acceptance of responsibility, a sentencing court cannot consider against a defendant any constitutionally protected conduct, whether it occurs before or after the entry of a plea." Watt, 910 F.2d at 592 (emphasis added). Moreover, we concluded that "the district court may not balance against evidence of remorse or acceptance of responsibility, the fact that the defendant requested counsel, or relied upon the privilege not to make any statement to the police or to assist them in gathering inculpatory evidence." Id. (emphasis added). Even though both the Government and the district court may expend time and resources in preparing and considering pretrial motions, these concerns must be balanced against the prevailing constitutional concerns. Because constitutionally protected conduct should not be considered against the defendant for purposes of an acceptance of responsibility reduction, see id., a...