                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                    PUBLISH
                                                                   October 24, 2006
                   UNITED STATES CO URT O F APPEALS               Elisabeth A. Shumaker
                                                                      Clerk of Court
                               TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

             Plaintiff-Appellee,
       v.                                              No. 05-4087
 DIO NICO BLANCO, JR., a/k/a
 Junebug,

             Defendant-Appellant.



         A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                       FOR T HE DISTRICT OF UTAH
                      (D.C. NO . 1:03-CR-131-01-DK W )


Scott Keith W ilson, Assistant Federal Public Defender (Steven B. Killpack,
Federal Public D efender, with him on the briefs) for D efendant-Appellant.

Diana Hagen, Assistant United States Attorney (Paul M . W arner, United States
Attorney and Stephen J. Sorenson, Acting United States Attorney for the District
of Utah, with her on the briefs) for Plaintiff-Appellee.


Before HARTZ, EBEL, and McCONNELL, Circuit Judges.


McCONNELL, Circuit Judge.


      Section 3E1.1(b) of the United States Sentencing Guidelines confers on

prosecutors “‘a power, not a duty,’” to recommend a one-level downward

departure for acceptance of responsibility when certain conditions are met.
United States v. M oreno-Trevino, 432 F.3d 1181, 1186 (10th Cir. 2005) (quoting

Wade v. United States, 504 U.S. 181, 185 (1992)). One of those conditions is that

a defendant has “timely notif[ied] authorities of his intention to enter a plea of

guilty, thereby permitting the government to avoid preparing for trial and

permitting the government and the court to allocate their resources efficiently.”

U.S. Sentencing Guidelines M anual § 3E1.1(b) (2006).

      In this case, the government expended resources to accommodate Dionico

Blanco’s request to have an independent lab reweigh the drug evidence against

him. Due to these costs, it refused to move for a § 3E1.1(b) downward departure

after he pleaded guilty. M r. Blanco now argues that we should overturn this

prosecutorial decision because it was “not rationally related to a legitimate

government end.” M oreno-Trevino, 432 F.3d at 1186 (quotation marks omitted).

W e hold that efficient resource allocation is a legitimate government end to which

the prosecutor’s decision not to file a § 3E1.1(b) motion was rationally related.

W e therefore AFFIRM the judgment of the district court.

I.    Background

      A.     Facts

      On August 31, 2003, officers in the Ogden M etro G ang Unit observed M r.

Blanco urinating on a dumpster outside Teaser’s Night Club in Ogden, Utah. The

officers approached him and asked for identification; after providing it, M r.




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Blanco quickly turned and ran from the officers. The officers chased M r. Blanco

and called for assistance.

      Backup officers arrived to see M r. Blanco run toward a restaurant and

throw something onto the roof. Shortly thereafter, the officers arrested him.

They then returned to the restaurant and found on the roof a plastic bag

containing a green substance and a yellow rock substance. Subsequent testing

identified the green substance as 1.9 grams of marijuana and the yellow rock

substance as 6.1 grams of cocaine base.

      M r. Blanco was charged in a two-count indictment with possession of

cocaine base and marijuana in violation of 21 U.S.C. § 844(a). He eventually

pleaded guilty to Count I, possession of cocaine base, in exchange for the

government’s promise to recommend that the sentencing court decrease the

offense level by two for acceptance of responsibility under U SSG § 3E1.1(a).

      Before M r. Blanco pleaded guilty, however, his attorney moved to have the

cocaine base reweighed at an independent testing facility. The government made

the drugs available for reweighing as requested, but expended resources in doing

so. As the prosecutor explained,

      the reweighing in itself required the government to draft an order, to
      make arrangements, we had to tie up an FBI agent for a number of
      hours taking the evidence out of the evidence room, transporting it to
      an independent lab, sitting and waiting and, of course, the result was
      5.9 grams because approximately two-tenths [of a gram] had been
      taken out by the crime lab [for the first test] and that wasn’t there
      anymore and now we have 5.9 grams.

                                          -3-
R. Vol. II, at 6. Due to these costs, the government declined to move for an

additional one-level acceptance of responsibility departure under § 3E1.1(b).

      At sentencing, M r. Blanco argued that the government violated his

procedural due process rights by refusing to move for a § 3E1.1(b) departure

simply because he wanted to reweigh the drug evidence against him. M r. Blanco

also argued that he was entitled to a § 3E1.1(b) departure because he timely

informed the government that he intended to plead guilty after the drugs were

reweighed.

      The district court rejected M r. Blanco’s arguments. It ruled that “the

government has [the] prerogative” not to file a § 3E1.1(b) motion, and it refused

to reduce M r. Blanco’s sentence on that basis. Id. at 11–12. But the court did

grant the recommended two-level departure under § 3E1.1(a), resulting in a

guidelines range of 92 to 115 months. The court then exercised its Booker

discretion and sentenced M r. Blanco to seventy-seven months in prison— a

sentence fifteen months shorter than the low end of the applicable Guidelines

range and seven months shorter than what the low end of the

Guidelines range would have been had the government moved for a § 3E1.1(b)

departure.

      Neither party appeals from the district court’s exercise of Booker

discretion. M r. Blanco, however, appeals from the court’s refusal to require the

government to file a § 3E1.1(b) acceptance of responsibility motion or sua sponte

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to depart downward one level after the government refused to make such a

motion.

      B.     Intervening Tenth Circuit Authority

      After the parties completed briefing in this case but before argument

occurred, a panel of this Court seemingly answered the question presented here by

holding in M oreno-Trevino “that prosecutors should be afforded the same

discretion to file acceptance-of-responsibility motions under Section 3E1.1(b) as

substantial-assistance motions under Section 5K1.1.” 432 F.3d at 1185–86.

M oreno-Trevino also held that “a court can review the government’s refusal to

file a Section 3E1.1(b) motion and grant a remedy if it finds the refusal was ‘(1)

animated by an unconstitutional motive, or (2) not rationally related to a

legitimate government end.’” Id. at 1186 (quoting United States v. Duncan, 242

F.3d 940, 947 (10th Cir. 2001)). W e asked the parties to file supplemental briefs

and address how these holdings in M oreno-Trevino affect this case.

II.   Discussion

      The defendant argues that the prosecutor’s refusal to file a § 3E1.1(b)

motion was not rationally related to any legitimate government interest. W e

disagree.

      The prosecutor correctly conceded at sentencing that defendants charged

with drug offenses “have the right to reweigh” any drug evidence against them.

R. Vol. II, at 10; see Fed. R. Crim. P. 16(a)(1)(E). But she also argued that

                                         -5-
accommodating a defendant’s request for an independent reweighing of drug

evidence “takes up [governmental] time, resources, [and] energy of agents” to

ensure that the evidentiary chain of custody remains unbroken. R. Vol. II, at 10.

She explained that it was “a matter of policy” for her office not to move for §

3E1.1(b) departures if a defendant’s guilty plea requires further expenditure of

government resources (as is necessary when reweighing evidence). Id. at 7.

       W e see nothing impermissible about the government’s reasoning in these

circumstances. Ensuring efficient resource allocation is a legitimate government

end and a stated purpose of § 3E1.1(b). And a prosecutor’s decision not to make

a § 3E1.1(b) motion on behalf of a defendant who requests independent

reweighing, with its concomitant resource expenditure, is rationally related to that

end.

       M r. Blanco also argues that the prosecutor’s decision was “unconstitutional

as an interference with discovery rights based in due process.” A ppellant’s

Supplemental Br. 7. M r. Blanco misunderstands the scope of our review. W e are

limited to examining whether the prosecutor’s decision was “animated by an

unconstitutional motive.” M oreno-Trevino, 432 F.3d at 1186 (quotation marks

omitted) (emphasis added). In other words, was the refusal based on a factor such

as the defendant’s race, religion, or gender? See Duncan, 242 F.3d at 947 n.11;

United States v. M aldonado-Acosta, 210 F.3d 1182, 1184 (10th Cir. 2000). M r.

Blanco admits that the prosecutor withheld the motion “because she felt that M r.

                                         -6-
Blanco’s request to conduct an independent lab test was a waste of her time,”

Appellant’s Supplemental Br. 5, not for any constitutionally impermissible

reason. Therefore, his argument is beyond the scope of appellate review as

defined by M oreno-Trevino.

      Even if we could reach the issue, however, w e would reject the argument.

The Defendant is wrong to conceive the requirement of waiving his right to weigh

evidence as an unconstitutional interference with that right. To be sure, a

defendant has the right to engage in certain investigatory methods to test the

government’s case— just as he has the right to insist on going to trial before a

jury, on putting the government to its proof beyond a reasonable doubt, on

introducing evidence, and so forth. But when a defendant chooses to trade the

exercise of such rights for a reduction in sentence, this does not mean the

government has “interfered” with the right. Rather, it means that he has exercised

the right in a particular w ay: namely, by exchanging it for valuable consideration.

W ere this not so, the practice of plea bargaining itself would be unconstitutional.

In this case, M r. Blanco enjoyed the right to insist on reweighing the drugs, and

he could exercise that right in one of two ways: by reweighing the drugs or by

waiving that right in exchange for a lower sentence. He took the former option.

It is not unconstitutional to deny him the benefit of the choice he did not make.

      The judgment of the district court is AFFIRM ED.




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