                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                      PUBLISH
                                                                       NOV 14 1997
                  UNITED STATES COURT OF APPEALS
                                                                  PATRICK FISHER
                                                                            Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellant,
             Cross-Appellee,
       v.                                       Nos. 96-2240 & 96-2242
 GENEVA GALLEGOS, also known as
 Leann Rael,

             Defendant - Appellee,
             Cross-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                    (D.C. NO. CR-94-211-MV)


Richard A. Friedman, Department of Justice, Appellate Section Criminal
Division, Washington, D.C. (John J. Kelly, United States Attorney, and Tara C.
Neda, Assistant U.S. Attorney, District of New Mexico, Albuquerque, New
Mexico, with him on the briefs), for Appellant/Cross-Appellee.

Adam G. Kurtz, Albuquerque, New Mexico, for Appellee/Cross-Appellant.


Before ANDERSON, EBEL, and LUCERO, Circuit Judges.


ANDERSON, Circuit Judge.
      Ms. Geneva Gallegos was convicted of possession with intent to distribute

more than 50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a). After

finding Gallegos qualified for an acceptance of responsibility adjustment and

departing downward from the Sentencing Guidelines 1 range, the district court

sentenced her to 34 months in prison, followed by five years supervised release.

The court departed downward from Gallegos’ base offense level based on five

factors: (1) an inexplicable disparity of sentences between Gallegos and co-

defendant John Paul Wilbon, (2) Gallegos’ minor role in the offense, which was

limited to the four to six weeks she lived with co-defendant Levone Ray Maden,

(3) the court’s finding that Gallegos was “under significant influence, domination,

and manipulation” because of her youth and her dependance on Maden for her

daily needs, (4) Gallegos’ lack of criminal history, and (5) Gallegos’ family

responsibilities as the sole support for her six-year-old son and partial support for

her parents. R. Vol. III at 11-14. The Government appeals, alleging the district

court erred in departing from the Sentencing Guidelines on these bases. The

Government also appeals the district court’s finding that Gallegos qualified for an




      1
       U.S. Sentencing Guidelines Manual (1995) [hereinafter USSG].

                                         -2-
acceptance of responsibility adjustment. 2 We vacate the sentence and remand for

resentencing.



                                   BACKGROUND

      In March 1994, while executing a fugitive arrest warrant for co-defendant

Maden, FBI agents found large quantities of crack cocaine in an apartment shared

by Maden and Ms. Gallegos. A third defendant, Wilbon, was found in the

apartment at the time of entry and was arrested along with Maden and Gallegos.

All three were charged with possession with the intent to distribute more than 50

grams of a mixture or substance which contains cocaine base, 3 and after a jury

trial in January 1996, Gallegos and Maden were convicted. Pursuant to a plea

agreement, Wilbon pleaded guilty to a lesser charge of possession with intent to

distribute less than five grams of crack cocaine.

      At her initial sentencing hearing in July 1996, Gallegos testified that she

had assisted Maden in his drug dealing prior to the night of her arrest. In


      2
       Ms. Gallegos originally cross-appealed her conviction based upon allegedly
improperly admitted evidence regarding a co-defendant, Mr. Maden. However, after this
Court’s rejection of Maden’s evidentiary challenge in United States v. Maden, 114 F.3d
155 (10th Cir. 1997), cert. denied, No. 97-5356, 1997 WL 434805 (U.S. Oct. 6, 1997),
Gallegos concedes that her cross-appeal must be rejected as well. Appellee/Cross-
Appellant’s Supplemental Br. at 2. We agree and therefore do not address this issue.
      3
       Wilbon was also initially charged with possession with intent to distribute a
mixture or substance which contains cocaine base, in violation of 21 U.S.C. § 841(a)(1).

                                           -3-
particular, Gallegos admitted to distributing drugs from a motel room, renting

motel rooms with the knowledge drug activity would be conducted there,

accompanying Maden on drug-distribution trips, and responding to calls for

drugs. R. Supp. Vol. I at 10-13.

      When the sentencing hearing resumed in September 1996, the district court

accepted the recommendation of the presentence report (“PSR”) that Gallegos’

base offense level should be 34 under USSG § 2D1.1(c)(3), and also accepted the

PSR recommendation that Gallegos receive a two-level downward adjustment as a

minor participant pursuant to USSG § 3B1.2. In addition, the court found that

Gallegos qualified for the safety-valve provision of USSG § 5C1.2, which freed

Gallegos from the ten-year statutory minimum sentence and earned her a further

two-level downward adjustment. Furthermore, the court found Gallegos

deserving of a downward adjustment for acceptance of responsibility under USSG

§ 3E1.1(a); however, it is unclear whether this adjustment was actually granted. 4

Finally, the court departed downward from the base offense level eleven levels



      4
        Based on the original offense level of 34, and the two-level adjustments under the
safety-valve, minor participant, and acceptance of responsibility provisions, the base
offense level determined by the court before calculating any relevant departures should
have been 28. However, the court stated in the sentencing hearing that the base offense
level was 29. R. Vol. III at 11. Then, the court announced that it would “depart 11 levels
to an offense level of 19," R. Vol. III at 14, which would mean the court was actually
computing from a base offense level of 30–not 29 as the court initially stated or 28 as it
should have been had an acceptance of responsibility adjustment been granted.

                                           -4-
and sentenced Gallegos to 34 months’ imprisonment, followed by five years

supervised release.



                                   DISCUSSION

                        I. Departure from the Guidelines

      We review a district court’s decision to depart from the Sentencing

Guidelines for abuse of discretion. Koon v. United States, 116 S. Ct. 2035, 2047-

48 (1996); United States v. Lowe, 106 F.3d 1498, 1501 (10th Cir.), cert. denied,

117 S. Ct. 2494 (1997). In Koon, the Court found “[a] district court’s decision to

depart from the Guidelines . . . will in most cases be due substantial deference,

for it embodies the traditional exercise of discretion by a sentencing court.” Id. at

2046. The Court reasoned that district courts have an “institutional advantage”

over appellate courts in making departure decisions since they deal with such

determinations on a daily basis. Id. at 2046-47.

      Nevertheless, the Court also concluded that “whether a factor is a

permissible basis for departure under any circumstances is a question of law, and

the court of appeals need not defer to the district court’s resolution of the point.”

Id. at 2047. “The abuse of discretion standard includes review to determine that

the discretion was not guided by erroneous legal conclusions.” Id. at 2048. We

have summarized our analysis as:


                                         -5-
             (1) whether the factual circumstances supporting a departure
             are permissible departure factors; (2) whether the departure
             factors relied upon by the district court remove the defendant
             from the applicable Guideline heartland thus warranting a
             departure, (3) whether the record sufficiently supports the
             factual basis underlying the departure, and (4) whether the
             degree of departure is reasonable.

United States v. Collins, 122 F.3d 1297, 1303 (10th Cir. 1997). The first inquiry

is a legal question, the second is factual.

      In general, a court must impose a sentence within the guideline range

unless it finds “there exists an aggravating or mitigating circumstance of a kind,

or to a degree, not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a sentence

different from that described.” 18 U.S.C. § 3553(b); see USSG § 5K2.0, p.s. We

therefore address each factor relied on by the district court to see whether the

factor is encouraged and ordinarily relevant to the sentencing determination, and

if so, if it has already been taken into consideration by the guidelines. If the factor

is discouraged and not ordinarily relevant, or is encouraged but has already been

taken into consideration by the guidelines, we then determine whether the

“characteristic or circumstance is present to an unusual degree and distinguishes

the case from the ‘heartland’ cases covered by the guidelines in a way that is

important to the statutory purposes of sentencing.” USSG § 5K2.0, p.s.




                                              -6-
                            A. Disparity of Sentences

      The first ground for departure relied on by the district court was the

disparity of sentences between Gallegos and co-defendant Wilbon. R. Vol. III at

12. The court recognized that Wilbon was sentenced to only 30 months in prison,

while Gallegos, who played only “a minor role in the instant offense and was

equally [or] less culpable,” faced a potential sentence exposure of ten years. R.

Vol. III at 11-12. The Government argues that the disparity between Gallegos’

guideline range and Wilbon’s sentence did not provide a lawful basis for

departure. Appellant’s Br. at 15-21. We agree.

      It is true that in imposing a sentence, the district court should consider,

inter alia, “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.” 18 U.S.C.

§ 3553(a)(6). However, the purpose of the guidelines is to “eliminate

unwarranted disparities [in sentencing] nationwide,” United States v. Garza, 1

F.3d 1098, 1100 (10th Cir. 1993), not to eliminate disparity between co-

defendants. This circuit has stated that “neither Congress nor the [Sentencing]

Commission could have expected that the mere fact of a difference between the

applicable guideline range for a defendant [and] that of his co-defendant would

permit a departure, either because the difference was too large or too small.” Id.;

see United States v. Joyner, 924 F.2d 454, 460-61 (2d Cir. 1991) (“To reduce the


                                         -7-
sentence by a departure because the judge believes that the applicable range

punishes the defendant too severely compared to a co-defendant creates a new and

entirely unwarranted disparity between the defendant’s sentence and that of all

similarly situated defendants throughout the country.”).

      In particular, a departure based on a disparity between co-defendants is not

justified when sentences are dissimilar because of a plea bargain.

      [A] trial judge may not reduce a defendant’s sentence on the mere
      basis that a co-defendant who engaged in similar conduct but agreed
      to plead guilty to lesser charges received a lighter sentence. Any rule
      to the contrary would invade the United States Attorney’s broad
      prosecutorial discretion. Moreover, “allowing a defendant’s
      sentence to be reduced on account of a codefendant’s plea bargain
      may tend to discourage the government from offering plea bargains
      in cases involving multiple defendants.”

United States v. Contreras, 108 F.3d 1255, 1271 (10th Cir.) (quoting United

States v. Mejia, 953 F.2d 461, 468 (9th Cir. 1992)), cert. denied, No. 96-9286,

1997 WL 336905 (U.S. Oct. 6, 1997). Here, Ms. Gallegos went to trial and was

convicted of possession with intent to distribute more than 50 grams of crack

cocaine, while Wilbon, on the other hand, pled guilty to the lesser charge of

possession with intent to distribute less than five grams of crack cocaine.

Because of Wilbon’s plea bargain, Gallegos and Wilbon were not similarly

situated and any disparity in their sentences is explicable. See Contreras, 108

F.3d at 1271 (“[W]hile similar offenders engaged in similar conduct should be

sentenced equivalently, disparate sentences are allowed where the disparity is

                                         -8-
explicable by the facts on the record.”) (quotations and citations omitted). We

therefore conclude that the district court erred in reducing Ms. Gallegos’ sentence

based upon disparity with the sentence of a co-defendant who pled guilty to a

lesser charge.



                                    B. Minor Role

      Next, the district court relied on Gallegos’ limited role in the offense in

granting the departure. The court determined that Gallegos played a minor role in

the drug activity as compared to co-defendant Wilbon, R. Vol. III at 11, and noted

that Gallegos’ involvement in the drug activity was limited to the time she lived

with co-defendant Maden. 5 R. Vol. III at 12. The Government asserts that this

factor, although ordinarily relevant, had been already accounted for in the

guidelines. Appellant’s Br. at 21-24. We agree.

      A defendant’s role in the offense is ordinarily relevant in determining the

appropriate sentence. USSG § 5H1.7, p.s. However, in Gallegos’ circumstances,

this factor had already been adequately accounted for in the guidelines by

§ 3B1.2. See Koon, 116 S. Ct. at 2045 (stating that relevant factors do not justify

departure when already taken into consideration by the guidelines, unless present


      5
       We note, however, that Gallegos’ counsel admitted at the initial sentencing
hearing that “Geneva [Gallegos] . . . was involved to the same extent as John Paul
[Wilbon]. Not the length, but the actual extent.” R. Supp. Vol. I at 54.

                                           -9-
to an exceptional degree). Under § 3B1.2, a defendant can receive a downward

adjustment of four levels if the defendant’s participation in the offense was

minimal, two levels if the defendant’s participation was minor, and three levels if

the defendant’s participation falls between minimal and minor. USSG § 3B1.2.

Here, the court granted Ms. Gallegos only a two-level adjustment as a minor

participant, but then granted her an additional downward departure under

§ 5H1.7. In this instance, we see no basis for doing more for Gallegos than the

guidelines provided for in § 3B1.2, and if such basis exists, the district court did

not point it out, and Gallegos’ counsel cited no authority in support it. In

particular, the court erred in departing from the guidelines without explaining

why the guideline adjustment provisions were inadequate to account for Gallegos’

circumstances. See USSG § 5K2.0 (“[T]he court may depart from the guidelines,

even though the reason for departure is taken into consideration in the guidelines

(e.g., as a specific offense characteristic or other adjustment), if the court

determines that, in light of unusual circumstances, the guideline level attached to

that factor is inadequate.”). We therefore conclude that the district court erred in

granting without explanation an additional departure for minor role under

§ 5H1.7.



                                     C. Coercion


                                          -10-
       Next, the district court inferred that Ms. Gallegos was subject to coercion,

stating that Maden subjected her to “significant influence, domination, and

manipulation.” R. Vol. III at 12. The Government asserts that this influence is

not extraordinary and does not rise to a level of coercion which the guidelines

might countenance. Appellant’s Br. at 24-28. We agree.

       The guidelines state that “[o]rdinarily coercion will be sufficiently serious

to warrant departure only when it involves a threat of physical injury, substantial

damage to property or similar injury resulting from the unlawful action of a third

party or from a natural emergency.” USSG § 5K2.12, p.s. Here, the record

contains no evidence of threats made by Maden to Gallegos; the only evidence

offered by the defense was Gallegos’ comment at the sentencing hearing that she

refused to testify against co-defendant Maden because at the time she was “just

scared” and “[didn’t] know if he would, you know, try to threaten [her] in any

way.” 6 R. Supp. Vol. I at 35.

       Furthermore, to justify a departure, the alleged coercion must have caused

the defendant to commit the criminal act. USSG § 5K2.12, p.s. (stating that

departure is allowed “[i]f the defendant committed the offense because of serious



       6
         We note that speaking of USSG § § 5K2.12 and 5K2.13, which deal respectively
with coercion and duress and diminished capacity, Gallegos’ counsel admitted at the
initial sentencing hearing that he did not “believe the evidence would satisfy either one of
those, in [and] of themselves.” R. Supp. Vol. I at 52.

                                            -11-
coercion . . . or duress”). In this case there is no evidence in the record of a

causal connection—no evidence that Gallegos was afraid of Maden at the time she

lived with him and participated in the drug activity. Thus, even if Gallegos’ fear

of Maden at the time of trial were sufficient to qualify as coercion under the

guidelines, departure is still not justified because Gallegos has failed to show that

this fear caused her to participate in the drug activity. Because the record shows

no threats made to Gallegos by Maden, and there is no evidence of a causal

connection, the coercion factor is an impermissible basis for departure in this

case. 7



                                   D. Criminal History

          Next, in granting the departure, the district court relied on the fact that

Gallegos had no prior criminal history. R. Vol. III at 12. The Government asserts

that in this case it was impermissible for the district court to use Gallegos’ lack of



         We note additionally that the district court made mention of Gallegos’ youth and
          7

the fact that Maden was twice her age. R. Vol. III at 12. “Age (including youth) is not
ordinarily relevant in determining whether a sentence should be outside the applicable
guideline range.” USSG § 5H1.1, p.s. As such, because Gallegos’ youth is not
extraordinary enough to justify applying a generally irrelevant factor, to the extent the
district court may have relied on this factor, the district court erred.

       The district court also mentioned the fact that Maden “provided for all of
[Gallegos’] daily needs.” R. Vol. III at 12. “[P]ersonal financial difficulties and
economic pressures . . . do not warrant a decrease in sentence.” USSG § 5K2.12. As
such, to the extent the district court may have relied on this factor, the district court erred.

                                              -12-
criminal history as a basis for downward departure. Appellant’s Br. at 28-30. We

agree.

         “The lower limit of the range for Criminal History Category I is set for a

first offender with the lowest risk of recidivism. Therefore, a departure below the

lower limit of the guideline range for Criminal History Category I on the basis of

the adequacy of the criminal history cannot be appropriate.” USSG § 4A1.3, p.s.;

see United States v. Maldonado-Campos, 920 F.2d 714, 719 (10th Cir. 1990) (“In

downward departures, the court ordinarily will look to the next-lower criminal

history category for guidance, however, a departure below criminal history

category I is not appropriate.”) (citations omitted). Thus, although criminal

history is ordinarily relevant in determining the appropriate sentence, USSG

§ 5H1.8, this factor was already taken into account when the court placed

Gallegos in criminal history category I and any further downward departure was

inappropriate.



                              E. Family Responsibilities

         Finally, the court relied on Gallegos’ family responsibilities in granting the

departure, finding that she provides the sole support for her six-year-old son and

partial support for her parents. R. Vol. III at 12. The Government argues that




                                           -13-
Gallegos’ circumstances fall within the heartland and thus cannot be a lawful

basis for departure. Appellant’s Br. at 30-35. We agree.

       Although in the past this circuit has affirmed departures in cases involving

family responsibilities, see, e.g., United States v. Pena, 930 F.2d 1486 (10th Cir.

1991); United States v. Tsosie, 14 F.3d 1438 (10th Cir. 1994), family

responsibilities is in general a disfavored ground for departure. USSG § 5H1.6.

As such, any family circumstances must be extraordinary before a departure can

be justified. In both Pena and Tsosie, the family circumstances alone were not

extraordinary; rather, the departures were based primarily on aberrant behavior,

supported by family responsibilities. See Pena, 930 F.2d at 1495 (“The

aberrational character of her conduct, combined with her responsibility to support

two infants, justified a departure.”); Tsosie, 14 F.3d at 1441-42 (“Tsosie’s steady

employment, economic support of his family, combined with his aberrational

conduct . . . were properly considered by the court in departing downward.”).

       Gallegos concedes that in her case, family responsibilities alone do not take

her case out of the heartland, and thus is not a sufficient ground for departure, 8


       8
        We note that in this circuit, single parenthood alone or support of minor children
alone may not be a sufficient ground for departure. See United States v. Rodriguez-
Velarde, No. 96-2292, 1997 WL 640618, at *3-4 (10th Cir. Oct. 17, 1997) (stating that a
defendant whose wife passed away subsequent to his arrest, leaving behind three
effectively orphaned children, has “failed to demonstrate that his family ties and
responsibilities are extraordinary”); United States v. Webb, 49 F.3d 636, 638-39 (10th
                                                                               (continued...)

                                            -14-
Appellee’s Br. at 21 (citing Tsosie), but argues that she deserves a departure

based on a totality of circumstances analysis similar to that used in Pena and

Tsosie. Appellee’s Br. at 21. However, this is not possible because we have

concluded that the other four factors considered by the court in addition to family

responsibilities were inappropriate grounds for departure. Thus, we conclude that

Gallegos’ family circumstances, although regrettable, fall within the heartland

contemplated by the guidelines and do not justify a departure.



                   II. Acceptance of Responsibility Adjustment

       In addition to departing downward from the base offense level, the district

court found Ms. Gallegos deserving of a downward adjustment for acceptance of

responsibility pursuant to § 3E1.1, based on her post-trial written statement of

February 1996 and her testimony at the initial sentencing hearing. R. Vol. III at

10. In response, the Government argues that Gallegos was disqualified from the

acceptance of responsibility credit. Appellant’s Br. at 35-38. We agree.




       8
        (...continued)
Cir. 1995) (stating that being the sole caretaker of a child is not extraordinary); United
States v. Ziegler, 39 F.3d 1058, 1062 (10th Cir. 1994) (stating that supporting three
children is not extraordinary). However, it is unnecessary to reach this point because of
Gallegos’ concession that her family circumstances alone do not take her case out of the
heartland.

                                           -15-
      A district court has broad discretion to grant or deny an adjustment for

acceptance of responsibility, and a court of appeals should not reverse the district

court’s decision unless it is clearly erroneous. United States v. Jaynes, 75 F.3d

1493, 1508 (10th Cir. 1996); see USSG § 3E1.1, comment. (n.5) (“[T]he

determination of the sentencing judge is entitled to great deference on review.”).

However, the defendant bears the burden of proving she is entitled to a reduction

under § 3E1.1. Jaynes, 75 F.3d at 1508; United States v. Ivy, 83 F.3d 1266, 1292

(10th Cir.), cert. denied, 117 S. Ct. 253 (1996); United States v. Whitehead, 912

F.2d 448, 450 (10th Cir. 1990).

      We are not persuaded that in this case the defendant has met that burden.

Referring to acceptance of responsibility, the Sentencing Guidelines state, “This

adjustment is not intended to apply to a defendant who puts the government to its

burden of proof at trial by denying the essential factual elements of guilt, is

convicted, and only then admits guilt and expresses remorse.” USSG § 3E1.1,

comment. (n.2). Clearly, “[t]he timeliness of the defendant’s acceptance of

responsibility is a consideration.” Id. at comment. (n.6). Forcing the government

to prove its case at trial and then expressing remorse, as Gallegos has done, is not

a timely acceptance of responsibility. See, e.g., United States v. Jaramillo, 98

F.3d 521, 526 (10th Cir.) (finding defendant not entitled to reduction in sentence

for acceptance of responsibility where defendant contested his guilt and gave


                                         -16-
inadequate initial statement of acceptance of responsibility), cert. denied, 117 S.

Ct. 499 (1996); Ivy, 83 F.3d at 1293 (“[A] defendant who denies factual guilt and

forces the government to prove it at trial is not entitled to a reduction for

acceptance of responsibility . . . .”); United States v. Portillo-Valenzuela, 20 F.3d

393, 394 (10th Cir. 1994) (“Pleading not guilty and requiring the government to

prove guilt at trial demonstrate denial of responsibility . . . .”); United States v.

McCollum, 12 F.3d 968, 973 (10th Cir. 1993) (affirming district court’s denial of

acceptance of responsibility adjustment where defendant went to trial).

      Although choosing to proceed to trial “does not automatically preclude a

defendant from consideration for such a reduction,” if a defendant does choose

trial, “a determination that a defendant has accepted responsibility will be based

primarily upon pre-trial statements and conduct.” 9 USSG § 3E1.1, comment.

(n.2). Here, because the district court relied solely on statements Ms. Gallegos


      9
       The guidelines state:

      Conviction by trial, however, does not automatically preclude a defendant from
      consideration for such a reduction. In rare situations a defendant may clearly
      demonstrate an acceptance of responsibility for his criminal conduct even though
      he exercises his constitutional right to a trial. This may occur, for example, where
      a defendant goes to trial to assert and preserve issues that do not relate to factual
      guilt (e.g., to make a constitutional challenge to a statute or a challenge to the
      applicability of a statute to his conduct). In each such instance, however, a
      determination that a defendant has accepted responsibility will be based primarily
      upon pre-trial statements and conduct.

USSG § 3E1.1, comment. (n.2).

                                           -17-
made after trial, the court erred in granting Gallegos an adjustment for acceptance

of responsibility.



                                 CONCLUSION

      For the foregoing reasons, we VACATE the sentence imposed by the

district court and we REMAND this case for resentencing not inconsistent with

this opinion.




                                        -18-
