
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2133                                    UNITED STATES,                                      Appellee,                                          v.                                  JOHN JAIRO MUNOZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Sara Rapport on brief for appellant.            ____________            Sheldon Whitehouse,  United States Attorney,  Margaret E.  Curran,            __________________                            ___________________        Assistant United  States Attorney, and Stephanie  S. Browne, Assistant                                               ____________________        United States Attorney, on brief for appellee.                                 ____________________                                    April 26, 1996                                 ____________________                 Per Curiam. Defendant-appellant John Jairo Munoz Estrada                 __________            pled guilty to illegal reenty after deportation, in violation            of 8 U.S.C.   1326.  He appeals from his sentence on the sole            ground  that the district court  erred in denying  him a one-            level  reduction  pursuant  to  U.S.S.G.     3E1.1(b)(2)  for            "timely  notifying authorities  of his  intention to  enter a            plea  of  guilty."   We vacate  his  sentence and  remand for            resentencing.                 "A defendant bears the  burden of proving entitlement to            decreases   in  the   offense   level,   including   downward            adjustments for  acceptance  of  responsibility.    Once  the            sentencing  court has ruled against him on such an issue, the            defendant faces an uphill battle."  United States v. Morillo,                                                _____________    _______            8  F.3d 864,  871 (1st  Cir. 1993).   "The  clearly erroneous            standard  . .  .  guides appellate  review of  district court            determinations under section 3E1.1(b)." Id.                                                    ___                 "The   timeliness  of  the   defendant's  acceptance  of            responsibility is  . . . context specific." U.S.S.G.   3E1.1,            comment.  (n.6).   To  qualify for  the additional  one-level            reduction  under     3E1.1(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." Id.                                                    ___                                         -2-                 In denying the  one-level reduction for timeliness,  the            district court  focused on  the court's ability  to "allocate            its resources efficiently,"   3E1.1(b)(2), rather than on the            government's expenditure of resources in preparing for trial.            (The government  concedes in its  brief that "[t]here  was no            direct  evidence  on  the  record that  the  prosecution  had            actually prepared for trial -- outside of preparing responses            to  defense counsel's boilerplate  motions.")1  Specifically,                                                         1            the court  emphasized that Munoz  did not plead  guilty until            after the case was placed on the court's trial calendar.                 Wasting judicial resources is, of course, a valid ground            for denying  the extra  one-level reduction.   Here, however,            the  case was placed on  the court's trial  calendar on March            22, 1995.  Munoz did not  actually enter his plea until April            5, 1995.   The language of    3E1.1(b)(2) refers to  the date            that  the defendant "notif[ies]  authorities of his intention            to  enter a plea  of guilty," not  the date that  the plea is            entered.   In this case,  notification occurred on  March 16,            1995, the date on which the parties filed their executed plea            agreement with  the court.  Therefore,  notification occurred            before  the  district court  placed  the  case on  the  trial                                            ____________________               1We do not suggest that work by prosecutors in  responding               1            to pretrial motions cannot, in many circumstances, constitute            "preparing for  trial" within  the purview of    3E1.1(b)(2).            We  merely  point out  that,  here, the  government  gave the            district  court very little to work with, and, in all events,            the court did not  premise its denial of the  added reduction            on the government's preparatory work.                                         -3-            calendar.  It was clear error for the district  court to rule            that Munoz's acceptance of responsibility was untimely on the            ground  that it  occurred after  the case  was placed  on the            court's trial calendar.                 The sentence  is vacated  and the  case is  remanded for                                  _______                    ________            resentencing.  At the new sentencing hearing, either side may            proffer relevant information concerning the government's work            in preparing the case up to the time of the plea agreement.                                         -4-
