U.S. v. Valencia

• Decision Date: 24 February 1993
• Docket Number: No. 92-7417,92-7417
• Citation: 985 F.2d 758
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francisco Lozano VALENCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 758

985 F.2d 758

UNITED STATES of America, Plaintiff-Appellee, v. Francisco Lozano VALENCIA, Defendant-Appellant.

No. 92-7417.

United States Court of Appeals Fifth Circuit.

Feb. 24, 1993.

Rehearing Denied April 23, 1993.

Thomas S. Berg, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, TX, for defendant-appellant.

Kenneth P. Dies, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, TX, for plaintiff-appellee.

Appeal from the United States District Court For the Southern District of Texas.

Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

I.

On February 27, 1991, Francisco Lonzano Valencia pleaded guilty, pursuant to a plea agreement, to aiding and abetting the possession, with intent to distribute, in excess of five kilograms of cocaine. In exchange for Valencia's plea, the government agreed, among other things, to stipulate that Valencia accepted responsibility for his conduct in accordance with USSG § 3E1.1. This would entitle Valencia to a two-level reduction in offense level.

The Presentence Report (PSR) ordered by the Trial Court concluded that Valencia was not entitled to the two-level reduction in the offense level for acceptance of responsibility for the offense because Valencia did not accept responsibility for his relevant conduct. Valencia objected to the PSR, among other things, specifically on the ground that he was not entitled to that reduction.

At the initial sentencing hearing on May 15, 1991, the district court granted Valencia a one-level reduction for cooperation with the government and a one-level reduction for acceptance of responsibility, resulting in a sentence of 120 months plus five years of supervised release and a $50 special assessment. Valencia appealed, challenging the propriety of his sentence.

On March 18, 1992, this Court vacated that sentence and remanded for resentencing, finding that a district court may not award a one-level reduction for partial acceptance of responsibility. We held that the Trial Court must either give a two-point reduction or it may not reduce the sentence at all. United States v. Valencia, 957 F.2d 153 (5th Cir.1992).

Valencia was resentenced on May 22, 1992. The district court denied Valencia any credit for acceptance of responsibility at that proceeding but did grant him a two-point reduction for substantial assistance, resulting in a sentence of 108 months incarceration, a five-year term of supervised release, and a $50 special assessment. The government argued at the resentencing that despite its stipulation to the contrary, Valencia "clearly ... should not be entitled to any credit for acceptance of responsibility."

Valencia again appeals, claiming that the government breached the plea agreement when it stated that Valencia did not deserve a two-level reduction for acceptance of responsibility.

We VACATE the sentence and REMAND for resentencing by a different judge.

II. DISCUSSION

At the initial sentencing on May 15, 1991, the probation officer submitted the PSR that concluded that Valencia had denied any involvement in the offense to which he pleaded guilty. Valencia's original counsel filed objections to the PSR in an attempt to clarify Valencia's apparent non-acceptance of responsibility. Counsel explained that no attorney was present when Valencia, a Colombian National who did not speak English, was debriefed by the probation officer responsible for compiling the PSR and that Valencia had been told to refrain from speaking to anyone without his counsel present, and thus, did not talk openly with the probation officer.

The court noted Valencia's objection to the PSR and stated that he was "about halfway convinced" as to Valencia's participation in accepting responsibility. He thus gave him a one-level reduction for that category.

At resentencing on May 22, 1992, Valencia's attorney claimed that his client was remorseful for his conduct, fully accepted responsibility, and had he been familiar with the debriefing, would have been more forthcoming in his statements. ¹ Following defense counsel's argument, the following exchange took place in relevant part between the trial judge and the prosecutor, Mr. Dies:

THE COURT: What is the Government's thoughts in that regard?

MR. DIES: Your Honor, what kind of frightens me a little bit is counsel's assertion that today the defendant is more remorseful and accepts more his responsibility than he did at the initial plea of guilty. Is that to say, then, your Honor, logically extending the argument, that if we somehow mess up today and it gets reversed or remanded, then we come back four months later, if the defendant is even more remorseful in four months from now, he gets more credit?

My position is, Your Honor, that although we may have at the outset agreed by a plea bargaining that this defendant accepted responsibility for his conduct, he failed to demonstrate that to you on the record with his debriefing and with the written statement, and clearly, Your Honor, he should not be entitled to any credit for acceptance of responsibility. It was incumbent upon the defendant, not the lawyers and their skills, to show the Court acceptance of responsibility. I am of the opinion, Your Honor, from the facts today and the facts at the entry of the plea of guilty, that the defendant by his assistance to authorities, by his debriefs, played a substantial role in the resolution of the case over all and is entitled to a reduction that you see fit for substantial assistance, but nothing because he hasn't demonstrated to you, Your Honor, a true acceptance of responsibility. (emphasis added).

Defense counsel immediately objected that the government had breached the plea agreement with this statement and demanded specific performance of the plea agreement.

The district court ruled on the objection and stated: "Specifically, the court notes for the record its perception that it respectfully requested a response from Mr. Dies earlier with regard to this issue. Mr. Dies was therefore duty bound to make some offering to the court. The court does not characterize that as a breach of the agreement that induced this defendant to plead guilty in this case for any purpose."

The government relies upon United States v. Hand, 913 F.2d 854 (10th Cir.1990) to support its contention that the government need not stand mute in the face of incorrect or misleading testimony. It points out that the Hand court held that the prosecutor, who had agreed to recommend that the defendant receive a reduction in sentence for having a minor role in the offense, had a right to cross examine the defendant in light of incorrect or misleading testimony offered to the trial court.

Noting the court's ruling on Valencia's objection to the prosecutor's comments in question, the government now argues that no...