                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               December 18, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 12-3062
          v.                                            (D. Kansas)
 ADRIAN M. BATTS,                             (D.C. No. 2:10-CR-20102-CM-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.


      Defendant Adrian Batts pleaded guilty in the United States District Court

for the District of Kansas to one count of conspiracy to distribute crack cocaine

one business day before his case was set for trial. He appeals the denial of the

one-point offense-level reduction under USSG § 3E1.1(b) for timely acceptance

of responsibility. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Defendant was charged in five counts of a six-count indictment alleging

various drug and firearm offenses. Trial was scheduled to begin on Monday,

February 14, 2011. On Friday, February 11, Defendant pleaded guilty without a

plea agreement to the count charging conspiracy to distribute five or more grams

of crack cocaine. See 21 U.S.C. §§ 841(a)(1), 846.

      The presentence investigation report (PSR) computed a total offense level

of 18 (including a two-point reduction for acceptance of responsibility under

USSG § 3E1.1(a)) and a criminal-history category of IV, which resulted in a

guideline range of 41 to 51 months’ imprisonment. The PSR also noted that the

government could move for an additional one-point reduction for timely

acceptance of responsibility under USSG § 3E1.1(b). Defendant objected to the

PSR on the ground that the total offense level did not include the additional one-

point reduction. In response to the objection, the government opposed the

additional reduction because Defendant offered his plea after it had already

prepared for trial. The district court overruled the objection and sentenced

Defendant to 51 months’ imprisonment.

      USSG § 3E1.1(b) provides for a one-point offense-level reduction “upon

motion of the government stating that the defendant has assisted authorities in the

investigation or prosecution of his own misconduct by timely notifying 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

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their resources efficiently” (emphasis added). The government does not,

however, have unlimited discretion to refuse to file such a motion. “[A] court can

review the government’s refusal to file a Section 3E1.1(b) motion . . . if it finds

the refusal was (1) animated by an unconstitutional motive, or (2) not rationally

related to a legitimate government end.” United States v. Blanco, 466 F.3d 916,

918 (10th Cir. 2006) (internal quotation marks omitted).

      Defendant does not argue that the government was animated by an

unconstitutional motive. Rather, he argues that by pleading guilty before the

morning of trial, resources could be allocated more efficiently than if he had

waited until the morning of trial. He notes that the jury pool did not need to

appear, the court calendar was freed, and prosecutors and government witnesses

were able to attend to other duties.

      We reject this argument. Defendant concedes that the government prepared

for trial. His guilty plea therefore did not “permit[] the government to avoid

preparing for trial.” USSG § 3E1.1(b). It is not enough that his plea might have

come even later. The government was sufficiently inconvenienced that it was

justified in refusing to move for the reduction. See United States v. Kimple,

27 F.3d 1409, 1413 (9th Cir. 1994) (“[W]e emphasize that a defendant who pleads

guilty on the eve of trial is not entitled to the reduction for timely acceptance of

responsibility under subsection (b)(2).”); United States v. Chacon-Orozco,

421 F. App’x 810, 811–12 (10th Cir. 2010) (defendant who pleaded guilty three

                                          -3-
days before trial had “put the government to the burden of substantial trial

preparation” and was not entitled to sentence reduction under USSG § 3E1.1(b)).

      We AFFIRM the district court’s judgment.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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