                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 09-10524
                                                             JULY 14, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________                CLERK

                  D. C. Docket No. 08-10013-CR-KMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ERNESTO MONTERO,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (July 14, 2009)

Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Ernesto Montero appeals his 33-month sentence imposed following his

guilty plea to one count of conspiracy to induce aliens to enter the United States.

Montero argues the district court erred when it refused to grant him a two-point

reduction for acceptance of responsibility at sentencing on the ground his last-

minute plea was not timely. He contends although his plea, offered on the morning

trial was set to commence, was not timely for the purposes of a one-point reduction

under § 3E1.1(b), considerations other than timeliness govern possible reductions

under § 3E1.1(a).

      We review for clear error both the district court’s application of the

Sentencing Guidelines and the denial of a reduction of sentence for an acceptance

of responsibility. United States v. Knight, 562 F.3d 1314, 1322 (11th Cir. 2009);

see also United States v. Frank, 247 F.3d 1257, 1261 (11th Cir. 2001) (“A district

court is in a ‘unique position to evaluate’ whether a defendant sufficiently

demonstrates acceptance of responsibility; therefore ‘the determination of the

sentencing judge is entitled to great deference on review.’” (quoting U.S.S.G. §

3E1.1 app. 5.”).

      Consistent with the applicable Guideline provisions, the district court ruled

Montero failed to demonstrate his entitlement to an acceptance of responsibility




                                          2
reduction. The court found Montero’s plea was not timely1 because Montero did

not offer his plea until the morning his trial was to begin, thus necessitating

significant trial preparation by the government and the transportation of witnesses

from across the state, and inconveniencing the jury pool which was already

assigned to the trial, Montero himself conceded his plea was not timely. The

district court’s reliance on the timing of Montero’s plea and the context in which it

was offered is in full accord with § 3E1.1(a), the explanatory comments

accompanying that section, and the cases interpreting and applying it. Montero has

therefore failed to demonstrate clear error. We conclude the district court’s

decision to deny Montero a two-point reduction for acceptance of responsibility

was not clearly erroneous.

       AFFIRMED.




       1
         The timeliness of a guilty plea is a consideration under both § 3E1.1(a) and (b). See
U.S.S.G. § 3E1.1, comment. n.1 (h) (“In determining whether a defendant qualifies under
subsection (a), appropriate considerations include, but are not limited to, the following: . . . the
timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.”);
U.S.S.G. § 3E1.1, comment. n.6 (“The timeliness of the defendant’s acceptance of responsibility
is a consideration under both subsections, and is context specific.”).



                                                 3
