                                                    NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                          No. 09-3724




               UNITED STATES OF AMERICA

                               v.

                  CHRISTOPHER SANCHO,
                               Appellant




         On Appeal from the United States District Court
             for the Middle District of Pennsylvania
                  (D.C. No. 1-07-cr-00479-003)
          District Judge: Honorable John E. Jones, III




           Submitted Under Third Circuit LAR 34.1(a)
                      September 13, 2010

     Before: SLOVITER, BARRY and SMITH, Circuit Judges

                  (Filed: September 16, 2010)


                           OPINION
SLOVITER, Circuit Judge.

       Appellant Christopher Sancho, who was sentenced to forty-eight months

imprisonment after pleading guilty to a one-count information charging him with use of a

communication facility (telephone/cell phone) to facilitate drug trafficking in violation of

21 U.S.C. § 843(b), appeals from his sentence. Sancho claims that the District Court

erred in not granting him a two-level reduction at sentencing under U.S.S.G. §

2D1.1(b)(11), that the District Court abused its discretion by finding that Sancho was not

truthful in his statements regarding his role in the offense, and that the District Court

erred by denying him a three-level downward departure under U.S.S.G. § 3E1.1 for

acceptance of responsibility.

                                              I.

                                Facts and Procedural History

       The maximum term of imprisonment for violation of 21 U.S.C. § 843(b) is four

years. Shortly after the information was filed, Sancho and several co-defendants were

named in a five-count Superseding Indictment charging various drug offenses.1 The




                    1
                       The indictment charged Sancho with violations of 21
             U.S.C. § 841(a)(1) (distribution, possession with intent to
             distribute, and manufacture of crack cocaine), 18 U.S.C. §
             1952(a)(3) (interstate travel in aid of drug trafficking and
             conspiracy to do the same), 21 U.S.C. § 843(b) (use of a
             communication facility to facilitate drug trafficking), and 21 U.S.C.
             § 846 (conspiracy to distribute fifty grams or more of crack
             cocaine).

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Government agreed to dismiss the Superseding Indictment if Sancho pled guilty to the

charge that was the subject of the earlier information and to recommend a three-level

reduction, if warranted, for acceptance of responsibility. As noted earlier, Sancho did in

fact plead guilty as agreed.

       The Presentence Report (“PSR”) calculated an offense level of twenty-seven for

Sancho. The base offense level was thirty-two pursuant to U.S.S.G. § 2D1.1 because the

drug distribution involved between 150 and 500 grams of crack cocaine. That base

offense level was reduced two levels because the probation office believed that Sancho

had met the safety valve requirements of U.S.S.G. § 2D1.1(b)(11), and another three

levels for Sancho’s acceptance of responsibility. The probation office accepted Sancho’s

representations that he was involved in the drug transaction at issue only as a favor to a

friend, that it was an honest mistake which he never intended to go through with, and that

he was never involved with the sale of drugs prior to this single incident. Sancho’s

guideline range based on an offense level of twenty-seven and a Criminal History

Category I was seventy to eighty-seven months. However, because the statutory

maximum imprisonment for the offense is four years, the recommended guideline

sentence was forty-eight months. See U.S.S.G. § 5G1.2(a).

       Sancho requested in his sentencing memorandum that the District Court provide a

three-level reduction for acceptance of responsibility as well as a two-level reduction

pursuant to the safety valve requirements, noting that the PSR found him eligible and



                                              3
citing further evidence as to his entitlement. The Government responded, opposing the

two-level reduction.

       At sentencing, the District Court denied the two-level safety valve reduction

stating (1) that a two-level reduction to the guideline range would still create a range in

excess of the four-year maximum and (2) that, as a finding of fact, Sancho did not meet

the requirements on the merits because he minimized his role in the incident and lied

when he denied having participated in drug trafficking before. The District Court

declined to find that Sancho accepted responsibility and further denied the three-level

reduction as moot because the reduction would not bring Sancho’s guideline below the

four-year maximum. After considering the factors in 18 U.S.C. § 3553(a), the District

Court imposed a sentence of forty-eight months imprisonment, a $100 special assessment,

and a one-year term of supervised release. Sancho appeals his sentence.

                                             II.

                          Jurisdiction and Standard of Review 2

       We review “the District Court’s interpretation of the Sentencing Guidelines de

novo and scrutinize[ ] any findings of fact used in the calculation for clear error.” United

States v. Wood, 526 F.3d 82, 85 (3d Cir. 2008) (internal citations omitted). “Because the

sentencing judge ‘is in a unique position to evaluate a defendant’s acceptance of



                    2
                      The District Court had jurisdiction under 18 U.S.C. §
             3231 and we have jurisdiction under 28 U.S.C. § 1291 and 18
             U.S.C. § 3742(a).

                                              4
responsibility,’ we give great deference on review to a sentencing judge’s decision not to

apply the two-level reduction for acceptance of responsibility to a particular defendant.”

United States v. Barr, 963 F.2d 641, 657 (3d Cir. 1992) (quoting U.S.S.G. § 3E1.1 cmt.

n.5).

                                              III.

                                          Discussion

        Under U.S.S.G. § 5C1.2, the District Court may disregard a statutory minimum

sentence in the case of an offense under 21 U.S.C. §§ 841, 844, 846, 960, or 963 when the

defendant meets the five criteria listed: (1) not having more than one criminal history

point; (2) not using violence or possessing a firearm/dangerous weapon in connection

with the offense; (3) the offense did not result in death or serious bodily injury to anyone;

(4) the defendant was not a leader/organizer of others in the offense; and (5) the

defendant has truthfully provided the Government all the information and evidence the

defendant has concerning the offense. Under U.S.S.G. § 2D1.1(b)(11), “[i]f the

defendant meets the criteria set forth in subdivisions (1) – (5) of subsection (a) of § 5C1.2

. . . decrease [the base offense level] by 2 levels.”

        The District Court denied Sancho’s request for the two-level safety valve reduction

under U.S.S.G. § 2D1.1(b)(11) because the resulting guideline range would be well in

excess of the forty-eight month maximum sentence. This raises an issue of law. Sancho

argues that the two-level reduction should be made from the four-year statutory maximum



                                               5
and not from the recommended guideline offense level. The District Court rejected that

argument because it construed the language “decrease by 2 levels” to mean a reduction

from the base offense level calculated before U.S.S.G. § 5G1.1(a) is applied. That is

consistent with the plain language of § 2D1.1(b)(11) and § 5G1.1(a).

       The District Court also stated that Sancho did not meet all of the criteria in § 5C1.2

because it believed that Sancho was not truthful regarding his role in the offense. The

District Court made a specific finding that Sancho’s “involvement was far greater than

[he] want[s] to admit to at this point.” App. at 71a. Although the Government did not

object to the PSR, which included a summary of Sancho’s interview with the probation

officer where he claimed this was an honest, one-time mistake, in its response to Sancho’s

sentencing memorandum as well as in a proffer it made at sentencing, the Government

repeatedly stated that it did not believe that Sancho had been truthful about his

involvement in this offense and other drug-related activity.

       In this case, the District Court found that Sancho had minimized his role. This is

not clearly erroneous as the District Court supported this finding based on the evidence in

the PSR as well as the proffer made by the Government, even though the proffer relied on

what Sancho further calls “corrupt sources,” namely Sancho’s co-defendants.

       The District Court by the time of Sancho’s sentencing had presided over the

sentencing of one of Sancho’s co-defendants who the Government proffered would have

testified that Sancho had been involved in numerous drug transactions. The Government



                                              6
would also have presented two other witnesses who would have provided similar

testimony. The District Court also supported its finding with evidence regarding taped

phone calls that indicate Sancho had a greater involvement in the charged offense, as well

as its belief that Sancho was being untruthful when he addressed the court. Thus, the

District Court did not err by considering the proffer by the Government and the potential

testimony of the “corrupt sources,” and its decision not to apply § 2D1.1(b)(11) was not

clearly erroneous.

       We turn to Sancho’s challenge to the District Court’s rejection of Sancho’s request

for a three-level reduction for acceptance of responsibility. Sancho argues that the

District Court did not consider his request. Sancho is mistaken. It is evident that the

District Court did consider this request when it stated that “[i]t’s essentially also a moot

point because of the statutorily capped sentence of 48 months.” App. at 77a. This is

similar to the District Court’s finding that the two-level safety valve reduction was

inapplicable, because even with the reductions the guideline range would still be in excess

of the statutory maximum. U.S.S.G. § 3E1.1(a) states that “[i]f the defendant clearly

demonstrates acceptance of responsibility for his offense, decrease the offense level by 2

levels,” with an additional one-level reduction if the defendant meets the requirements in

U.S.S.G. § 3E1.1(b).

       The PSR included a three-level reduction in its calculation of an offense level of

twenty-seven, which, when taken together with a Criminal History Category of I and the



                                              7
two-level safety valve reduction, resulted in the guideline range of seventy to eighty-

seven months, more than the statutory maximum. In addition, the District Court stated its

difficulty believing that Sancho is eligible for the three-level reduction due to his constant

attempts to minimize his role. This determination is reviewed for clear error, and we find

none. Therefore, the District Court properly found that three-level reduction for

acceptance of responsibility inapplicable.

                                             IV.

                                        Conclusion

       For the reasons set forth, we will affirm the judgment of sentence.




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