In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1335

United States of America,

Plaintiff-Appellee,

v.

Daniel Nielsen,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 99 CR 391-1--Charles R. Norgle, Sr., Judge.


Argued October 3, 2000--Decided November 13,
2000



  Before Flaum, Chief Judge, and Coffey and
Rovner, Circuit Judges.

  Flaum, Chief Judge. On the day prior to
his scheduled trial date, Daniel Nielsen
pleaded guilty to conspiracy to collect
extensions of credit by extortionate
means and was subsequently sentenced to
96 months of imprisonment. Nielsen
maintains on appeal that the district
court erred in denying him a one-level
reduction under sec. 3E1.1(b)(2) of the
sentencing guidelines for timely
notifying the authorities of his
intention to plead guilty. Because
Nielsen has failed to establish that the
district court committed clear error in
finding that Nielsen did not plead guilty
in a sufficiently timely manner to
warrant an additional reduction under
sec. 3E1.1(b)(2), we affirm.

I.   Background

  On May 25, 1999, Daniel Nielsen and his
codefendant, Timothy Nielsen, were
charged with knowingly using extortionate
means to collect extensions of credit, in
violation of 18 U.S.C. sec. 894. A
superseding three-count indictment adding
additional extortion and conspiracy
charges under sec. 894 was returned on
July 13, 1999.

  At his arraignment on July 30, Nielsen
entered a plea of not guilty as to all
three counts of the superseding
indictment. The trial date was
subsequently set for October 19. During
the months following his arraignment, and
as late as October 7, Nielsen filed a
number of pretrial motions, compelling
the government to prepare responses.
Included in the government’s responses
was a seventeen-page Santiago proffer,
582 F.2d 1128 (7th Cir. 1978), in
connection with the coconspirator
statements of codefendant Timothy
Nielsen.

  On October 12, a second superseding
indictment was returned. This indictment
differed from the previous one only in
that it changed the dates and reversed
the sequence of certain events relating
to the alleged criminal activity. At a
status hearing held on October 15,
Nielsen asked for a continuance of the
trial date because of the changes made by
the second superseding indictment. In
response, the district court concluded
that, although the second superseding
indictment did not sufficiently alter the
previous indictment to justify a long
extension of the trial date, a short
extension was nonetheless appropriate.
The district court accordingly reset the
trial date from October 19 to October 26.

  On October 16, Nielsen’s counsel
notified the government that Nielsen
intended to plead guilty. However,
Nielsen did not actually execute a plea
agreement or enter a guilty plea until
October 25, one day before his trial was
scheduled to begin. In the resulting plea
agreement negotiated between Nielsen and
the government, the government
recommended a two-level reduction under
sec. 3E1.1(a) for acceptance of
responsibility, but it disagreed with
Nielsen’s contention that he was entitled
to an additional one-level reduction
under sec. 3E1.1(b). The probation
officer also recommended that Nielsen be
denied the additional reduction, finding
that he had not timely notified the
government of his intention to plead
guilty. Nielsen did not object to this
recommendation before sentencing.
  At sentencing, the district court denied
Nielsen’s request for an additional one-
level reduction under sec. 3E1.1(b),
accepting the government’s position that
Nielsen’s agreement to plead guilty had
occurred too late to warrant the
reduction. As the prosecutor indicated,
by the time Nielsen gave notice of his
intention to plead guilty, the government
had already invested substantial
resources in trial preparation, such as
bringing in witnesses, issuing subpoenas,
and making travel arrangements. The court
then determined the applicable sentencing
range to be 87 to 108 months and imposed
a term of 96 months of imprisonment
followed by supervised release for three
years. Nielsen filed a timely notice of
appeal.

II.   Discussion

  Section 3E1.1(b)(2) provides for an
additional one-level reduction for a
defendant who has received a two-
leveldecrease for acceptance of
responsibility under sec. 3E1.1(a), if he
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 court to allocate its resources
efficiently." U.S.S.G. sec. 3E1.1(b)(2)
(emphasis added). To qualify for an extra
one-level decrease under sec. 3E1.1(b),
the defendant must prove by a
preponderance of the evidence that he is
entitled to the additional reduction. See
United States v. Wilson, 134 F.3d 855,
871 (7th Cir. 1998). This court reviews
for clear error a district court’s
factual findings regarding acceptance of
responsibility under sec. 3E1.1. See
United States v. Branch, 195 F.3d 928,
937 (7th Cir. 1999).

  In the present case, the district court
did not err in its determination that
Nielsen had not pleaded guilty in a
sufficiently timely manner to warrant a
reduction under sec. 3E1.1(b)(2). As the
plain language of sec. 3E1.1(b)(2) makes
clear, the relevant inquiry under the
guideline is whether Nielsen gave notice
of his intention to plead guilty at a
sufficiently early point in the process
to serve the purpose of conserving
government resources. See also U.S.S.G.
sec. 3E1.1, comment (n.6); United States
v. Francis, 39 F.3d 803, 808 (7th Cir.
1994). Here, by the time Nielsen express
ed an intent to plead guilty (only ten
days before trial), the government had
already responded to Nielsen’s pre-trial
motions and had prepared a lengthy
Santiago proffer in connection with the
coconspirator statements of Timothy
Nielsen. The government also indicated,
and Nielsen did not dispute, that it had
brought in witnesses, issued subpoenas,
and made travel arrangements.

  Further, according to the government, it
could not stop preparing for trial even
after Nielsen gave notice of his
"intention" to plead guilty because of
the possibility that the plea would not
go through. Compare Wilson, 134 F.3d at
872 ("Because a defendant is not bound by
an expressed intention to plead guilty,
it may indeed be a rare case in which
intent, without more, actually will
result in the conservation of
resources"); Francis, 39 F.3d at 808
("Until the defendants actually pleaded
guilty, they could still change their
minds and the government still had to
prepare for the contingency that the
defendants might elect to go to trial").
Rather, it was not until Nielsen actually
entered a guilty plea, on the day before
the scheduled trial date, that the
government was able to halt its
preparations. This court has repeatedly
held that a defendant who waits to plead
guilty until the "brink of trial" is not
entitled to a reduction under sec.
3E1.1(b)(2). United States v.
Covarrubias, 65 F.3d 1362, 1367 (7th Cir.
1995); see also United States v. Hamzat,
217 F.3d 494, 498 (7th Cir. 2000) (plea
entered after originally scheduled trial
date untimely); Francis, 39 F.3d at 808
(one week before trial untimely); United
States v. Robinson, 14 F.3d 1200, 1203
(7th Cir. 1994) (four days before trial
untimely). Thus, here, in light of the
last-minute nature of Nielsen’s plea and
the continuing burden imposed on the
government, the district court did not
err in denying Nielsen an additional one-
level reduction under sec. 3E1.1(b)(2).

  Nielsen attempts to excuse the
untimeliness of his plea by arguing that
he expressed his intention to plead
guilty within just four days of the
return of the second superseding
indictment, which, he says, finally
incorporated an accurate account of the
facts constituting the charged offenses.
According to Nielsen, it is not
unreasonable for a defendant to be
hesitant to waive his right to trial when
the government is indicating, through its
then pending indictment, that it intends
to try to prove a set of events that did
not happen in the sequence or on the
dates that the government alleges. This
argument is unavailing. As the government
points out, before the second superseding
indictment was returned, the government
had already made extensive prior
disclosures, which gave Nielsen the full
and complete picture of the evidence that
the government intended to present at
trial. Further, as recognized by the
district court, the second superseding
indictment made only minor modifications
to the previous indictment, i.e., to the
dates and sequence of certain events
underlying the crime. It is thus fanciful
for Nielsen to now suggest that the
changes made in the second superseding
indictment somehow excuse the last-minute
nature of his plea. Rather, any dispute
over the dates contained in the first
superseding indictment should have been
resolved earlier and should not have
delayed notification of his intent to
plead guilty. Compare United States v.
Senn, 129 F.3d 886, 897 (7th Cir. 1997)
(finding that a guilty plea entered only
three days before the scheduled start of
a narcotics trial was untimely and that
any disagreement as to the amount of
narcotics possessed by the defendant
should not have delayed the plea).

  Furthermore, there is no authority
supporting Nielsen’s proposition that the
timeliness of a plea should be measured,
for purposes of sec. 3E1.1(b)(2), in
relation to the date on which the last
indictment is returned in the case.
Rather, as discussed above, the relevant
inquiry under sec. 3E1.1(b)(2) is whether
the defendant notified the authorities of
his intention to plead guilty in a
sufficiently timely manner to serve the
purpose of conserving government and
court resources. For the reasons
previously mentioned, Nielsen has failed
to meet this standard.

  Finally, Nielsen argues that because
codefendant Timothy Nielsen was awarded
the third point under sec. 3E1.1(b) he
should have been as well, as he suggests
there is no legally significant
difference between the two defendants
with respect to their eligibility for the
third point. To the extent that Nielsen
is contending that the district court
improperly awarded Timothy Nielsen the
extra point, it does not follow that
Daniel Nielsen should gain a similar
benefit by reason of his codefendant’s
allegedly too lenient sentence. See
United States v. Edwards, 945 F.2d 1387,
1398 (7th Cir. 1991). Furthermore, the
district court could have rightly
determined that the two defendants should
be treated differently. Perhaps, as the
government suggests, the court found it
persuasive that Timothy Nielsen
cooperated extensively with the
government and did so before the entry of
his guilty plea.

  In any event, whether Timothy Nielsen
was properly awarded the third point
under sec. 3E1.1(b)(2) is a question that
this court need not, and can not, decide.
See United States v. Smith, 897 F.2d 909,
911 (7th Cir. 1990) (stating that the
court did not have jurisdiction to review
the sentence of the appellant’s
codefendant). If the sentence imposed
upon Daniel Nielsen falls within the
applicable guideline, then it can not be
overturned simply because another
defendant was sentenced differently. See
United States v. Simmons, 218 F.3d 692,
696 (7th Cir. 2000); Edwards, 945 F.2d at
1398. As discussed above, the district
court did not err in determining that
Nielsen had not pleaded guilty in a
sufficiently timely manner to warrant an
additional one-level reduction under sec.
3E1.1(b)(2). The fact that his
codefendant was awarded the extra
reduction is thus simply not relevant to
the instant case.

III.   Conclusion

  Accordingly, for all the above reasons,
the judgment of the district court is

AFFIRMED.
