     Case: 18-50473      Document: 00515063479         Page: 1    Date Filed: 08/05/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                      No. 18-50473                            FILED
                                                                         August 5, 2019
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

              Plaintiff - Appellee

v.

ELMO D'SHON STARLING,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 7:18-CR-5-1


Before CLEMENT, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM:*
       Elmo D’Shon Starling was indicted for being a felon in possession of a
firearm, and eventually pleaded guilty. The district court denied him a
reduction for acceptance of responsibility, which he now appeals. We affirm.
                              FACTS AND PROCEEDINGS
       On January 3, 2018, Starling was indicted for being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court set a plea


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-50473
deadline of February 22, 2018, and a trial date of March 5, 2018. At a status
conference on February 21, Starling informed the court that he had declined a
plea offer, was ready for trial, and intended to file a motion to suppress. On
February 22, the district court moved the trial date up to February 28.
However, after Starling filed a motion to suppress that same day, the court
scheduled a hearing on the motion for February 28 (a Wednesday) and re-set
the trial date to March 5 (the following Monday).
      On February 28, the district court denied Starling’s motion to suppress.
That same day, the government filed a superseding indictment, which added
aiding and abetting to the felon-in-possession charge. The next day, March 1,
at a rearraignment hearing, Starling initially pleaded not guilty. He then
asked for a new scheduling order with a new plea deadline, arguing the
superseding indictment was substantively different from the initial
indictment. The district court denied this request. After a brief recess, Starling
pleaded guilty to the superseding indictment.
      The presentence report (“PSR”) did not provide for an offense-level
reduction for acceptance of responsibility pursuant to U.S.S.G § 3E1.1. The
PSR stated that while the scheduling order “required [Starling] to plea by
February 22,” he “waited until March 1 . . . to notify the Court and the
[g]overnment of his intent to plead guilty. Therefore, his late plea forced the
[g]overnment to waste resources preparing for trial.” Starling objected,
contending that the timeliness of the plea was only one factor of several that
should be considered under § 3E1.1(a), and that waste of government resources
is only relevant to the § 3E1.1(b) reduction (for which he was ineligible). The
probation officer responded in an addendum that timeliness was an
appropriate consideration and that Starling had waited until the Thursday
before his Monday trial to plead guilty. The addendum further stated that
Starling’s “late plea forced the [g]overnment to waste resources preparing for
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                                  No. 18-50473
trial” and that the government had offered Starling a plea agreement in which
it would recommend a one-point reduction for acceptance of responsibility, but
he declined.
       At the sentencing hearing, the district court overruled Starling’s
objection for the reasons stated in the addendum. The court found that
Starling’s base offense level was 14 and criminal history category was IV and
sentenced him within the Guidelines range to 33 months imprisonment.
Starling timely appealed.
                            STANDARDS OF REVIEW
      “We review the district court’s legal interpretation of the Sentencing
Guidelines de novo and factual findings for clear error.” United States v.
Castillo, 779 F.3d 318, 321 (5th Cir. 2015). “However, determinations
regarding whether the defendant is entitled to a reduction for acceptance of
responsibility are reviewed with particular deference.” United States v. Lord,
915 F.3d 1009, 1017 (5th Cir. 2019). We “will affirm the denial of a reduction
for acceptance of responsibility unless it is without foundation, a standard of
review more deferential than the clearly erroneous standard.” Id. (quotation
omitted). “The defendant bears the burden of proving entitlement to a decrease
in offense level for acceptance of responsibility.” United States v. Ragsdale, 426
F.3d 765, 781 (5th Cir. 2005).
                                  DISCUSSION
      Starling’s first argument is that the district court misinterpreted § 3E1.1
by relying on the timeliness of his plea and its effect on government resources
in denying him the two-level reduction under § 3E1.1(a). A defendant may
receive a reduction in offense level under § 3E1.1(a) if he “clearly demonstrates
acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). If the
defendant qualifies under subsection (a) and his offense level prior to
application of that subsection is 16 or greater, a further reduction may be
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                                  No. 18-50473
applied upon the government’s motion “stating that the defendant . . . 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
government and the court to allocate their resources efficiently.” Id. § 3E1.1(b).
      The commentary to the Guidelines states that timeliness “is a
consideration under both subsections” of § 3E1.1. Id. § 3E1.1 cmt. n.6
(emphasis added); see also id. cmt. n.1(h); United States v. Diaz, 39 F.3d 568,
572 (5th Cir. 1994) (“[T]he consideration of timeliness is expressly allowed.”).
As such, the district court did not err in considering the timeliness of Starling’s
plea. Because the district court’s decision was based on a permissible factor,
we need not determine whether consideration of government resources was
erroneous. Diaz, 39 F.3d at 571 (“The district court’s consideration of an
irrelevant factor . . . is not fatal if there is some other reason to be found that
supports the court’s decision . . . .” (quotation omitted)); see also United States
v. Wilder, 15 F.3d 1292, 1299 (5th Cir. 1994) (“Moreover, Wilder did not agree
to plead guilty until the eve of trial, thereby putting the government to much
effort and expense preparing for trial.”).
      Starling also contends that the district court’s determination was
without foundation. We disagree. Waiting until the eve of trial, as Starling did
here, “is more than enough to warrant rejecting [his] claim.” United States v.
Moreno, 760 F. App’x 266, 272 (5th Cir. 2019) (per curiam); see also United
States v. Castaneda-Garcia, No. 18-50757, --- F. App’x ---, 2019 WL 2395130,
at *2 (5th Cir. June 5, 2019) (per curiam) (“Castaneda-Garcia has not shown
that the district court’s refusal to award a § 3E1.1[a] reduction due to her
untimely plea was without foundation.”); Diaz, 39 F.3d at 572 (“Given this
delay [until the morning of trial], the district court did not err in finding that
Defendants were untimely in manifesting the acceptance of responsibility.”
(quotation omitted)).
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                                       No. 18-50473
       The superseding indictment does not alter this analysis. “Aiding and
abetting is not a separate offense, but it is an alternative charge in every
indictment, whether explicit or implicit.” United States v. Neal, 951 F.2d 630,
633 (5th Cir. 1992). As the district court found, the superseding indictment did
not substantively change the charge against Starling by adding the aiding and
abetting language. Instead, it appears merely to have made clearer to Starling
the prosecution’s theory of the case, in the face of which he decided to plead
guilty. Cf. United States v. Hollis, 823 F.3d 1045, 1049 (6th Cir. 2016) (per
curiam) (“[T]imeliness may be an appropriate consideration under subsection
(a) when the lateness of the defendant’s plea indicates that the defendant is
pleading guilty because the government’s case has turned out to be strong and
not because he or she truly accepts responsibility.”). 1 The district court’s denial
of a two-level reduction is not without foundation.
                                       CONCLUSION
       For the foregoing reasons, we AFFIRM.




       1Starling’s reliance on United States v. Washington, 340 F.3d 222 (5th Cir. 2003), fairs
no better, as that case is inapposite. This court held that a defendant may seek to suppress
evidence and still receive a reduction under § 3E1.1. Id. at 228–29. It did not address
timeliness.
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