PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 96-4004
MICHAEL DAVID LANCASTER, a/k/a
Michael David Lancaster-el,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-94-454-PJM)

Argued: March 6, 1997

Decided: April 22, 1997

Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Murnaghan and Judge Ervin joined.

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COUNSEL

ARGUED: Margaret Brooke Murdock, FERGUSON, SCHE-
TELICH, HEFFERNAN & MURDOCK, P.A., Baltimore, Maryland,
for Appellant. Sandra Wilkinson, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee. ON BRIEF: Lynne A. Battaglia,
United States Attorney, Jan Paul Miller, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________
OPINION

WILKINS, Circuit Judge:

Michael David Lancaster appeals the sentence imposed by the dis-
trict court following his plea of guilty to conspiracy to possess with
the intent to distribute and to distribute cocaine and heroin. See 21
U.S.C.A. § 846 (West Supp. 1996). He asserts that the district court
erred in refusing to grant him an additional one-level downward
adjustment for acceptance of responsibility on the basis that he did
not timely provide the Government with complete information con-
cerning his involvement in the offense. See U.S. Sentencing Guide-
lines Manual § 3E1.1(b)(1) (1994). We affirm.

I.

From 1991 until his arrest in 1994, Lancaster was a participant in
a narcotics distribution ring in Maryland operated by Bernard Gibson,
Sr. During the course of the investigation of the conspiracy, federal
agents placed a wiretap on Gibson's telephone. Based upon informa-
tion gleaned from the wiretap, the agents obtained a search warrant
for Lancaster's home. Execution of the warrant resulted in the discov-
ery of several firearms, which Lancaster--who was present when the
search was conducted--admitted were his.

Following his arrest and indictment,1 Lancaster filed separate
motions to suppress the evidence obtained from the wiretap, the fire-
arms, and his statements to the officers who executed the search war-
rant. The district court conducted a hearing on the motions on August
3, 4, and 8, 1995, four weeks before the scheduled trial date of Sep-
tember 12. The motions were denied in an oral ruling at the conclu-
sion of the hearing on August 8. Lancaster immediately entered plea
negotiations with the Government and pled guilty pursuant to a writ-
ten plea agreement on August 17.
_________________________________________________________________

1 In addition to the conspiracy charge, Lancaster was indicted for three
counts of being a felon in possession of a firearm. See 18 U.S.C.A.
§ 922(g) (West Supp. 1997).

                    2
Under the plea agreement, Lancaster promised to provide the Gov-
ernment with all information he had concerning the Gibson narcotics
ring. In exchange, the Government agreed to recommend a two-level
downward adjustment for acceptance of responsibility and to move
for a downward departure of two levels if, in its discretion, it deter-
mined that Lancaster had provided substantial assistance. The Gov-
ernment recognized that Lancaster intended to request an additional
one-level downward adjustment under U.S.S.G. § 3E1.1(b), but
reserved the right to oppose such a request.

At sentencing, the parties agreed that according to the career
offender guideline, Lancaster's base offense level was 34 and his
Criminal History Category was VI. See U.S.S.G. § 4B1.1. The district
court granted a two-level downward adjustment for acceptance of
responsibility, but denied Lancaster's request for an additional one-
level adjustment on the basis that, "under all the very fact specific cir-
cumstances" of the case, Lancaster's decision to plead guilty and his
provision of information to the Government had not been timely. J.A.
139. The district court then granted the Government's motion for a
two-level downward departure based on Lancaster's substantial assis-
tance. See U.S.S.G. § 5K1.1. With the adjustment and the departure,
Lancaster's offense level was 30, resulting in a guideline range of
168-210 months. The district court sentenced Lancaster to 168
months imprisonment based on his candid and thorough cooperation
with the Government and on the fact that Lancaster's cooperation
endangered himself and his family.2

II.

Under U.S.S.G. § 3E1.1(a), a defendant is entitled to a two-level
downward adjustment "[i]f [he] clearly demonstrates acceptance of
responsibility for his offense." U.S.S.G. § 3E1.1(a). A defendant mer-
its a further, one-level downward adjustment pursuant to U.S.S.G.
_________________________________________________________________

2 At oral argument, the Government informed us that the district court
subsequently reduced Lancaster's sentence to 120 months based upon his
continued assistance to the Government. See Fed. R. Crim. P. 35(b). We
agree with the parties that the post-sentencing reduction of Lancaster's
term of imprisonment does not render his appeal moot.

                     3
§ 3E1.1(b) if his offense level prior to application of § 3E1.1(a) is 16
or greater and he:

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

          (1) timely providing complete information to the govern-
          ment concerning his own involvement in the offense;
          or

          (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.

U.S.S.G. § 3E1.1(b). The defendant need not satisfy both (b)(1) and
(b)(2); one or the other is sufficient. See United States v. Eyler, 67
F.3d 1386, 1391 (9th Cir. 1995). Moreover, once the defendant
proves by a preponderance of the evidence that he is eligible for the
additional one-level adjustment, the district court has no discretion to
refuse to award it. See id. at 1390.

Lancaster maintains that he satisfies the requirement of (b)(1) and
accordingly is entitled to a total adjustment of three levels for accep-
tance of responsibility.3 The Government acknowledges that Lancas-
ter provided complete information concerning his involvement in the
offense, but asserts that he is not entitled to the adjustment because
he failed to provide this information in a timely manner. Accordingly,
the only issue before us is whether the district court erred in conclud-
ing that Lancaster did not act "timely" within the meaning of
§ 3E1.1(b)(1). The timeliness of Lancaster's provision of information
to the Government is a factual question that we review for clear error.
See United States v. Jones, 31 F.3d 1304, 1315 (4th Cir. 1994). To
the extent the determination of timeliness by the district court rests on
an interpretation of the guidelines, however, our review is de novo.
See id.
_________________________________________________________________
3 Lancaster does not contend that he satisfies the requirement of
§ 3E1.1(b)(2).

                     4
As the commentary to § 3E1.1 makes clear, the determination of
whether a defendant has acted timely within the meaning of
§ 3E1.1(b) depends on the facts of the individual case. See U.S.S.G.
§ 3E1.1, comment. (n.6) (explaining that timeliness under § 3E1.1(b)
"is context specific"). Generally speaking, however, "the conduct
qualifying for a decrease in offense level under subsection (b)(1) or
(2) will occur particularly early in the case." Id. The key inquiry in
determining whether a defendant qualifies for a reduction under
§ 3E1.1(b)(1) is whether the defendant provides information in suffi-
cient time to aid the Government in the investigation or prosecution
of the case. See U.S.S.G. § 3E1.1(b); United States v. Thompson, 60
F.3d 514, 517 (8th Cir. 1995). This is so even if the information dis-
closed by the defendant is easily discoverable. See United States v.
Stoops, 25 F.3d 820, 822-23 (9th Cir. 1994). Thus, a defendant who
delays the disclosure of information to the Government until shortly
before a scheduled trial does not qualify for the reduction. See United
States v. Hopper, 27 F.3d 378, 384-85 (9th Cir. 1994); see also
Thompson, 60 F.3d at 517 (holding that a defendant who provided no
information until after entering his guilty plea and securing a grant of
immunity was not entitled to a one-level reduction under
§ 3E1.1(b)(1)).

Lancaster argues that he acted timely under (b)(1) because he pled
guilty and provided information to the Government almost immedi-
ately after the denial of his motions to suppress. To conclude that his
actions were not timely, Lancaster maintains, is to penalize him for
attempting to protect his constitutional rights. Accordingly, Lancaster
suggests that the timeliness of his cooperation should be measured
from the day his suppression motions were denied.

We disagree. The availability of a reduction for acceptance of
responsibility "merely formalizes and clarifies a tradition of leniency
extended to defendants who express genuine remorse and accept
responsibility for their wrongs." United States v. Crawford, 906 F.2d
1531, 1534 (11th Cir. 1990). Lancaster is not being punished for
choosing to assert his constitutional rights by filing the motions to
suppress; "he merely does not reap the benefit of the additional one-
point reduction given to others who volunteer information about their
conduct in a more timely manner." United States v. McQuay, 7 F.3d
800, 803 (8th Cir. 1993); cf. United States v. Altier, 91 F.3d 953, 958

                    5
(7th Cir. 1996) (rejecting argument that denial of one-level reduction
under § 3E1.1(b)(2) penalized the defendant for exercising his Sixth
Amendment right to counsel when he asserted that the right could
only be protected by delaying the decision to plead guilty until after
receiving discovery materials one day before his scheduled trial date).
In short, the denial of the additional one-level reduction under
§ 3E1.1(b)(1) simply reflects the conclusion of the district court that
Lancaster, by waiting until a mere three weeks before trial to provide
information to the Government, failed to "assist[ ] authorities in the
investigation or prosecution of his own misconduct." U.S.S.G.
§ 3E1.1(b).4

III.

We conclude that the district court did not err in denying Lancas-
ter's request for an additional one-level reduction in his base offense
level pursuant to U.S.S.G. § 3E1.1(b)(1). Accordingly, we affirm.

AFFIRMED
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4 United States v. Kimple, 27 F.3d 1409 (9th Cir. 1994), on which Lan-
caster relies for the proposition that a district court may not deny an
adjustment under § 3E1.1(b) on the basis that the defendant filed pretrial
motions to protect his constitutional rights, is not to the contrary.
In Kimple, the district court denied a one-level reduction under
§ 3E1.1(b)(2) to a defendant who pled guilty shortly after the court
denied his pretrial motions on the basis that the filing of the motions
delayed the proceedings. See id. at 1414. The Ninth Circuit concluded
that a district court may not deny a one-level adjustment under
§ 3E1.1(b)(2) simply because the defendant has acted to protect his con-
stitutional rights through the filing of pretrial motions. See id.; see also
id. at 1413 ("The denial of a reduction under subsection (b)(2) is imper-
missible if it penalizes a defendant who has exercised his constitutional
rights."). But, in so doing, the court made clear that the reduction could
be denied on the basis that, as a result of having chosen to exercise his
constitutional rights, the defendant "failed to notify authorities of his
intent to plead guilty before the Government was able to avoid trial prep-
arations, or before the court had set the calendar for trial." Id. at 1414.
Accordingly, in Kimple the court concluded that the defendant was enti-
tled to the additional one-level adjustment not because the filing of the
pretrial motions somehow "tolled" the running of the time in which the
defendant could be considered to have entered a timely plea, but because
the plea was timely irrespective of the filing of the pretrial motions.

                     6
