
USCA1 Opinion

	




          June 16, 1994     UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                     ____________          No. 93-2306                                    UNITED STATES,                                      Appellee,                                          v.                                  CLIFFORD K. TAPIA,                                Defendant, Appellant.                                     ____________                                     ERRATA SHEET               The opinion of this court issued on June 9, 1994, is amended          as follows:               Page 6, paragraph 2, line 2:  Delete "a" after "for."        June 9, 1994            [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2306                                    UNITED STATES,                                      Appellee,                                          v.                                  CLIFFORD K. TAPIA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                Selya, Circuit Judge,                                        _____________                      Coffin and Bownes, Senior Circuit Judges.                                         _____________________                                 ____________________            Marie T. Roebuck,  with whom John  F. Cicilline  was on brief  for            ________________             __________________        appellant.            Margaret E.  Curran, Assistant United  States Attorney, with  whom            ___________________        Edwin  J.  Gale, United  States  Attorney,  and  Gerard  B.  Sullivan,        _______________                                  ____________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                 ____________________                      BOWNES, Senior Circuit Judge.   This appeal asks us                      BOWNES, Senior Circuit Judge.                              ____________________            to determine  whether the  district court failed  to consider            subsection (b)(1)  of U.S.S.G.   3E1.1  in denying defendant-            appellant,  Clifford Tapia, an additional one-level reduction            in  his offense  level  for  acceptance  of  responsibility.1            Because it is likely that the court never  considered Tapia's            eligibility for  the extra reduction under    3E1.1(b)(1), we            vacate his sentence and remand so that the district court can            apply that guideline.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________                      In February 1993 a grand jury returned a four-count            indictment that charged Tapia  with possession of heroin with            (1)  intent  to  distribute  in  violation  of  18  U.S.C.               841(a)(1); (2) possession of a firearm during and in relation            to  a  drug trafficking  crime in  violation  of 18  U.S.C.              924(c);  (3)  being a  felon in  possession  of a  firearm in            violation  of 18  U.S.C.    922(g); and  (4) possession  of a            firearm  with  an altered  serial number  in violation  of 18            U.S.C.   922(k).   Tapia informed the government that  he was            willing to plead guilty to the first, third and fourth counts                                            ____________________            1.  The November  1993 edition  of the guidelines  applied in            this  case.  See United States v. Quinones, No. 93-1601, slip                         ___ _____________    ________            op. at  2 n.1 (1st Cir.  May 20, 1994) (absent  ex post facto            considerations  guidelines in  effect at  time of  sentencing            control).    All  Sentencing  Guidelines  references  in this            opinion are to that edition.                                         -2-                                          2            in consideration for the dismissal of count two, the   924(c)            count,  which carried a  mandatory minimum jail  term of five            years.   The government  declined to accept  this conditional            plea, and Tapia proceeded to trial on all four counts.                      Trial  commenced on  September  27, 1993.   On  the            second day  of trial, after  the government  had rested,  the            parties entered into a plea agreement whereby Tapia agreed to            plead guilty to counts one, three and four, in return for the            government's  dismissal of count two, the   924(c) count.  On            November 23, 1993,  the district court  sentenced Tapia to  a            prison term of forty-one months.2  This appeal ensued.                                         II.                                         II.                                      DISCUSSION                                      DISCUSSION                                      __________                      Tapia  contends that  the district  court erred  in            failing to  grant him  an additional one-level  reduction for            acceptance of  responsibility.   Tapia  received a  two-level            reduction under U.S.S.G.   3E1.1(a),  but claims he was  also            entitled  to  an  additional  reduction of  one  level  under            U.S.S.G.    3E1.1(b), which  requires the extra  reduction if            the   defendant   either   "(1)   timely   provides  complete                                              ___________________________            information to the government  concerning his own involvement            _____________________________________________________________            in  the offense;  or (2) timely  notifies authorities  of his            _______________   __                                            ____________________            2.  The  district court calculated  an adjusted offense level            of 18 and criminal history category of III.  This  produced a            guideline  sentencing  range  of  thirty-three  to  forty-one            months.                                         -3-                                          3            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."    (Emphasis            added.)  The thrust of Tapia's argument on appeal is that the            district court  denied him the additional one-level deduction            without ever considering subsection (b)(1).3                      The  issue  of  whether a  defendant  has  accepted            responsibility   is  "fact-dominated."     United  States  v.                                                       ______________            Morillo,  8 F.3d 864, 871  (1st Cir. 1994);  United States v.            _______                                      _____________            Donovan, 996 F.2d  1343, 1346  (1st Cir. 1993).   It  follows            _______            that  we  generally review  a  district  court's decision  to            withhold a  three-level reduction  under   3E1.1(b)  only for            clear error.   Morillo, 8 F.3d  at 871; Donovan,  996 F.2d at                           _______                  _______            1346.    Where, however,  as is  the  case here,  an improper            application of  the Guidelines is alleged,  no such deference            is warranted.  United States v. Tavano, 12 F.3d 301, 307 (1st                           _____________    ______            Cir.  1994).  The question  is not whether  Tapia satisfied              3E1.1(b)(1)'s  strictures,  but  whether the  district  court            addressed the issue at all.                      The government  contends  that the  district  court            "expressly  address[ed]"  the     3E1.1(b)(1)  question  "and            implicitly   found  the  Defendant's  cooperation  less  than            complete."   This  characterization of  the district  court's                                            ____________________            3.  Tapia recognizes that he  is ineligible for the reduction            under   3E1.1(b)(2).                                         -4-                                          4            ruling  is both  logically inconsistent  and contrary  to the            record.  It is clear that, despite defense counsel's explicit            request that  the district court consider    3E1.1(b)(1), the            court  focussed solely on the timing of Tapia's plea, i.e.,                                                                    ____            3E1.1(b)(2), in declining to  award the additional  one-level            reduction for acceptance of responsibility:                      It  seems  to  me  that  the  significant                      language  of this  guideline is  the word                      "timely"  and  that  it  must be  a  rare                      circumstance   indeed    that   where   a                      Defendant pleads, not admits,  but pleads                      to  a charge  after trial  has commenced,                      indicates that the trial was required for                      purposes    of   bargaining    with   the                      government with respect to another charge                      to  which  he did  not  plead ultimately,                      that could  hardly be  said to be  timely                      under any circumstances.            Transcript of  Sentencing Hearing at 11-12.  In denying Tapia            the additional one-level reduction, the court never made even            a veiled reference  to the timeliness or the  completeness of            the information provided by Tapia to the government, which is            the  express  subject  of     3E1.1(b)(1).    The  government            essentially  asks us  to play  the role  of mind  readers and            divine  something in  the  district court's  remarks that  is            simply not there.  We decline to do so.                      It   seems  probable  that   the  district  court's            oversight   stemmed  from   a  similar   deficiency   in  the            presentence  investigation report  (PSI).    The initial  PSI            recommended  a   two-level   reduction  for   acceptance   of            responsibility and  found that  Tapia was  not entitled  to a                                         -5-                                          5            three-level  reduction  because he  did not  enter a  plea of            guilty at a sufficiently  early point in the process  so that            the government  could avoid  preparing for  a trial,  and the            court could  schedule its calendar efficiently.   Tapia filed            an objection to the  report claiming that he was  entitled to            the  extra  reduction  because,   inter  alia,  "he  provided                                              _____  ____            complete  information to  the government  concerning his  own            involvement  in  the  offense."    An  addendum  to  the  PSI            responded that  Tapia was not entitled to the extra one-level            reduction  because he did not  enter a guilty  plea until the            second day of trial, and therefore did "not allow[] the court            to  use its  resources efficiently."   The  PSI's failure  to            address Tapia's    3E1.1(b)(1)  argument was repeated  by the            sentencing judge.                      Because  the  district  court  failed  to  consider            Tapia's eligibility for an extra one-level reduction pursuant            to U.S.S.G.    3E1.1(b)(1), Tapia's  sentence cannot  stand.4            We  therefore vacate the sentence and remand the case so that            We  therefore vacate the sentence and remand the case so that            _____________________________________________________________            the district court may consider whether Tapia is eligible for            the district court may consider whether Tapia is eligible for            _____________________________________________________________            the additional reduction of one level under   3E1.1(b)(1).            the additional reduction of one level under   3E1.1(b)(1).            __________________________________________________________                                            ____________________            4.  We express no opinion  as to the merits of  Tapia's claim            that  he is  entitled to  the additional  one-level reduction            available under that guideline.                                         -6-                                          6
