U.S. v. Villasenor-Cesar, VILLASENOR-CESA

• Decision Date: 10 June 1997
• Docket Number: No. 96-30194,VILLASENOR-CESA,D,96-30194
• Parties: 97 Cal. Daily Op. Serv. 4367, 97 Daily Journal D.A.R. 7293 UNITED STATES of America, Plaintiff-Appellee, v. Jaimeefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 970

114 F.3d 970

97 Cal. Daily Op. Serv. 4367, 97 Daily Journal

D.A.R. 7293

UNITED STATES of America, Plaintiff-Appellee, v. Jaime VILLASENOR-CESAR, Defendant-Appellant.

No. 96-30194.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 1997.

Decided June 10, 1997.

Mary C. Geddes, Assistant Federal Defender, Anchorage, AK, for defendant-appellant.

Joseph W. Bottini, Assistant United States Attorney, Anchorage, AK, for plaintiff-appellee.

Appeal from the United States District Court for the District of Alaska; James K. Singleton, District Judge, Presiding. D.C. No. CR-95-00108 JKS

Before LAY, ^* BEEZER and TROTT, Circuit Judges.

OPINION

TROTT, Circuit Judge:

Overview

Jaime Villasenor-Cesar appeals his sentence imposed following a trial to the district court on stipulated facts. Villasenor-Cesar contends that the district court erred by failing to adjust his sentence downward an additional one-level, pursuant to section 3E1.1(b)(2) of the Sentencing Guidelines, based on his acceptance of responsibility. Because Villasenor-Cesar did not timely notify authorities of his intention to plead guilty, he did not qualify for the additional one-level adjustment. We therefore affirm.

Background

Villasenor-Cesar was indicted for one count of unlawful reentry of an alien previously deported following a conviction of an aggravated felony in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). The case was originally set for trial on December 18, 1995. On December 15, 1995, at the hearing regarding Villasenor-Cesar's motion for continuance, both counsel indicated that the trial would take two days. Villasenor-Cesar's counsel also noted that "any lengthy presentation of evidence" might "be in the context of a motion to dismiss rather than at trial." The district court granted Villasenor-Cesar's motion for continuance and rescheduled the trial for February 12, 1996. On February 7, 1996, the district court accepted Villasenor-Cesar's waiver of his right to jury trial and granted his unopposed motion for a bench trial. The district court also granted Villasenor-Cesar's request for a continuance to allow additional briefing on the issue of the lawfulness of his underlying deportation. On February 16, Villasenor-Cesar filed a motion to dismiss on the ground that the deportation was unlawful; the Government opposed this motion. Villasenor-Cesar, however, failed to obtain a ruling on his motion to dismiss prior to the trial date.

On March 7, 1996, the case was tried to the court. The court first considered an underlying discovery dispute and then took up Villasenor-Cesar's motion to dismiss the indictment. Villasenor-Cesar contended that his prior deportation was unconstitutional ¹ because, in obtaining waivers of his rights to counsel and to appeal, the magistrate judge had denied him due process. The district court found that the deportation proceedings "were sufficiently complete to satisfy the requirements of due process," and therefore it denied Villasenor-Cesar's motion to dismiss.

The district court then considered whether Villasenor-Cesar had violated 8 U.S.C. §§ 1326(a) and (b)(2). The parties had stipulated: 1) that, at the time of the offense, Villasenor-Cesar was an alien; 2) that Villasenor-Cesar was arrested and deported in 1992; 3) that Villasenor-Cesar's prior deportation was subsequent to his 1989 California conviction for possession of marijuana for sale; 4) that Villasenor-Cesar was apprehended in Alaska in 1995; and 5) that Villasenor-Cesar had not sought or obtained permission to reenter the U.S. Based on these stipulated facts and on its findings that the deportation was lawful and that Villasenor-Cesar's prior conviction was for an aggravated felony, the court convicted Villasenor-Cesar.

At sentencing, Villasenor-Cesar requested a three-point reduction in his offense level for acceptance of responsibility, pursuant to USSG § 3E1.1. The Pre-Sentence Report did not recommend any adjustment for acceptance of responsibility. Although the Government initially opposed the request, the Government indicated at the sentencing hearing that a two-level adjustment was appropriate. The district court noted that Villasenor-Cesar had questioned both "the legality of his prior deportation" and "the quantity or significance of the drug offense;" therefore, "there was a contest." Recognizing that Villasenor-Cesar's arguments were "all of a legal nature," the court observed that "[t]he Ninth Circuit has said a number of times that anybody has a right to rely on the Constitution and cannot be sanctioned for interposing any defense, such as entrapment or seeking to suppress evidence." Finding this to be a "borderline case," the district court adjusted Villasenor-Cesar's offense level by two levels for acceptance of responsibility. On appeal, Villasenor-Cesar argues that the district court erred by failing to adjust his offense level an additional one-level pursuant to USSG § 3E1.1(b)(2).

Standard of Review

Whether a defendant is entitled to an adjustment based on acceptance of responsibility is a factual determination reviewed for clear error. United States v. Felix, 87 F.3d 1057, 1060 (9th Cir.1996). We also review for clear error a district court's decision to withhold the additional one-level adjustment under section 3E1.1(b) of the Guidelines. United States v. Hopper, 27 F.3d 378, 381 (9th Cir.1994). We review de novo the district court's application of the Sentencing Guidelines. United States v. Kimple, 27 F.3d 1409, 1411 (9th Cir.1994).

Discussion

This case presents the question of whether a defendant can qualify for the one-level additional adjustment pursuant to section 3E1.1(b)(2) if the defendant does not notify authorities of an intent to plead guilty. We hold that a defendant cannot.

Section 3E1.1 of the Sentencing Guidelines provides that a defendant qualifies for a two-level downward adjustment "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense." USSG § 3E1.1(a). If a defendant qualifies for the two-level adjustment under subsection (a), then he is entitled to an additional one-level adjustment if:

the defendant has assisted authorities in the investigation or prosecution of his own misconduct by taking one or more of the following steps:

* * *

(2) timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently.

USSG § 3E1.1(b). ² The third level of adjustment is mandatory if the circumstances apply. United States v. Colussi, 22 F.3d 218, 219 (9th Cir.1994).

Under the language of the Guideline, Villasenor-Cesar is not entitled to the additional one-level adjustment pursuant to subsection (b)(2) because he did not "timely notify[ ] authorities of his intention to enter a plea of guilty." Villasenor-Cesar, however, does not confront this language, but instead relies on the language of the Guideline's Application Notes to argue that he is entitled to the third level even though he went to trial. Application Note 2 states:

This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.

USSG § 3E1.1, comment. (n.2) (emphasis added). The note, in discussing "[t]his adjustment," does not specify whether it refers to the two-level adjustment available under subsection (a) or the additional one-level adjustment provided by subsection (b)(2). Because subsection (b)(2) expressly provides that the defendant must "timely notify[ ] authorities of his intention to enter a plea of guilty," we conclude that note 2 applies only to the subsection (a) adjustment.

Our conclusion is supported by the language, structure, history, and policy of the commentary. First, allowing application of the (b)(2) adjustment even in the rare situations described by the note would directly contradict the requirement of the Guideline itself. It would permit an adjustment for timely notification of an intent to plead guilty in the absence of any such notice. Second, note 2 uses the language of subsection (a) when describing when a defendant who goes to trial is nonetheless eligible for the adjustment: "In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial." USSG § 3E1.1, comment. (n.2) (emphasis added). Third, note 2 pre-dates the 1992 amendments that added subsection (b) and the additional one-level adjustment. See USSG § 3E1.1, comment. (n.2) (1991). Prior to 1992, a two-level adjustment was available "[i]f the defendant clearly demonstrate[d] a recognition and affirmative acceptance of personal responsibility," regardless of whether he entered a guilty plea or went to trial. USSG § 3E1.1(a), (b) (1991). Fourth, limiting note 2's application to subsection (a) gives full meaning to both it and the other notes. Note 6 stresses the timeliness of a defendant's notification of his intent to plead guilty: "For example, to qualify under subsection (b)(2), the defendant must have notified...