232 F.3d 581 (7th Cir. 2000)
United States of America, Plaintiff-Appellee,v.Daniel Nielsen, Defendant-Appellant.
No. 00-1335
In the  United States Court of Appeals  For the Seventh Circuit
Argued October 3, 2000Decided November 13,  2000

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


1
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

2
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.


3
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.


4
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.


5
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.


6
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

7
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).


8
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.


9
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).


10
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).


11
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.


12
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.


13
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

14
Accordingly, for all the above reasons,  the judgment of the district court is AFFIRMED.

