*1 America, UNITED STATES of
Plaintiff-Appellee,
Edid PATINO-CARDENAS,
Defendant-Appellant.
No. 94-20914. Appeals, Court of
Fifth Circuit.
June (Court
Jerome Godinich Appointed), Hous- ton, TX, Appellant. Burns, Ann
Alice L. Katherine Haden and Powers, L. Attys., James Asst. U.S. Paula C. Gaynelle Jones, Offenhauser and Griffin Attys., Houston, TX, Appellant. *2 also Patino to call back. and then station be- aliens were that two other Balentin told ing held. POLITZ, Judge, and Chief Before near a location called from Balentin When DeMOSS, Circuit and M. GARZA
EMILIO to station, Balentin Patino instructed the gas Judges. at store in front of him meet arrive he would Patino stated location. DeMOSS, Judge: Circuit Shortly plates. Mexican with in a red truck Patino, Eriban (Patino) pleaded thereafter, co-defendant Patino-Cardenas Edid (Cardenas-Aguirre), and Cardenas-Aguirre court to district in federal out, got States, Patino in violation in red truck. United arrived alien within an alias) point- and 1324(a)(l)(A)(ii). (using appeals He himself introduced 8 U.S.C. (1) Cesar, seated truck the dis- was still challenging: who only, ed to his sentence Cardenas-Aguirre Cardenas-Aguirre. two- adjust downward to failure court’s trict as a introduced and truck and of the got out points for gave the After Balentin two-point enhancement Patino’s. (2) friend ar- men were signal, We all three in the offense. prearranged on Patino’s based part, and remand part, reverse rested. affirm resentencing. to a Houston proceeded officers then INS house), (the where Pati- Leedale residence FACTS Patino- sister, Hermelinda co-defendant no’s and Cardenas, the door consented answered INS July Arkansas-based On Although she the house. to search a call from received agent John Stansel aliens in there were claimed (Cl) him informed informant who confidential hid- two aliens house, discovered agents INS aliens, including the Cl’s illegal ten took and the rooms ing in one of smuggled to Hous- Cesar, been had brother day custody. The next into individuals to release wanted smuggler $700 ton. The and Roberto Patino-Cardenas Hermelinda an under- gave the Cl Agent Stansel Cesar. arrested. also were Valtierra-Aeevedo along to pass number to telephone cover
Cesar. three with the interviews INS they, along with several revealed that aliens later, Roberto Valtierra-Acev- days Three Lar- aliens, Neuvo paid “recruiters” other Agent (Valtierra-Aeevedo) Stansel called edo smug- awith edo, in contact put them who to asked number undercover crossing their arranged smuggler gler. The responded Agent Stansel speak with the Cl. Laredo, Texas. River into Rio Grande and asked of town Valti- was out that the Cl pickup in a blue aliens rode Rock, Next Little to take Cesar to erra-Acevedo long hour, by a walk followed about refused to Valtierra-Aeevedo Arkansas. hour brush, two through followed another Arkansas, requested $700 to liver Cesar Along High- pickup. blue ride in the same release, Houston tele- left his Cesar’s east, stopped heading the blue way 59 Stansel. phone number with Cesar) (but were not the aliens two of information to passed the Stansel All pickup. red three to Patino’s transferred Thereafter, Agent INS in Houston. who as man drove Patino identified aliens Hous- Valtierra-Acevedo’s called Balentin1 to then drove Both trucks pickup. the red ftiend. number, claiming to be the Cl’s ton in Houston. house the Leedale Bal- telephone and told answered day, witnessed next needed person Balentin that he was entin re- money for receiving large sum release. Patino Cesar’s with about speak group. in their the aliens of five of gas designated lease go to a Balentin instructed "Balentin.” rec- Agent "Valentin.” The PSR refers 1. The Agent’s correct name clarifies that ord remaining they responsibility depends Patino told the aliens that upon whether he (1) effectively they to Mexico if could compris would be returned admitted the conduct ing the offense of conviction pay each for their release. All three admitted $500 falsely deny or did not that both Patino and additional aliens claimed Robert conduct, for which he people arrange to contact was accountable. *3 114, United States v. 68 F.3d the aliens’ release. One of the aliens stated Cir.1995); Smith, United States v. that seven other aliens in their — Cir.1994), denied, cert. group “paid had been for and delivered” -, (1994); 114 S.Ct. before the arrived. L.Ed.2d 877 comment, 1(a) § see also U.S.S.G. n. (1994); (failure § 1B1.7 to follow PROCEDURAL HISTORY guideline commentary can constitute an in charged in Patino was count 1 of a four application correct guidelines requir count indictment with ing appeal). reversal on Patino was not re States, within the United in violation of 8 quired to affirmatively volunteer or admit 1324(a)(l)(A)(ii).2 § pleaded U.S.C. Patino relevant conduct the conviction of plea bargain without the benefit A fense. defendant can “remain silent with 19,1994. September respect to relevant conduct the of (PSR) A presentence Investigation report fense of affecting conviction without his abili filed, objections timely and Patino filed ty to obtain a reduction.” Id. Patino could adjust based on the PSR’s failure to down- not, however, falsely deny frivolously or con responsibil- ward two levels for test relevant conduct that the court deter ity, and to a two level increase for Patino’s mined to be true. Id. probation in depart- role the offense. The During presentence investigation, Pati- PSR, ment then filed an addendum to the following no submitted statement stating that Patino had not admitted all of through counsel: comprising charged I my attorney have consulted with in count 1. importance understand the of this state- appeared sentencing, Patino When alleged ment. I committed the offense as judge objec- district court overruled Patino’s my in Count of indictment. imposed tions and sentence accordance 21,1994,1 July or On about PSR, with the which recommended an ad- Ramirex-Alvarez who was justed offense level of 13 and a criminal country illegally from the residence at 6426 history category Accordingly, of IV. Patino Houston, parking Leedale Texas to the was sentenced to 27 months incarceration lot front of the store at 11703 Weiners fine, and a to be followed term of $2500 Houston, Freeway using Eastex Texas years supervised appeal three release. This red GMC truck. followed. I understand the I committed crime my actions are I sinful. have caused ACCEPTANCE OF RESPONSIBILITY pain my family. I embarrassment go Iwish could back in time and not have argues my family I committed this crime. miss by denying court erred him a two-level down Yet, I wish could be with them. adjustment responsi ward punished. understand that I must be . bility pleaded guilty because he and admitted comprising all of the adjustment conduct the offense The PSR recommended charged. Patino is not entitled to a down and Patino ob- adjustment simply jected. objections, pleaded ward because he further those (1994). guilty. 3E1.1 Patino’s admitted that he “drove two of aliens into entitlement to an Houston and to collect ob- Cardenas-Aguirre, who went with Acevedo and Patino to Hermelinda Patino-Cardenas with Cesar, 1324(a)(1)(c) charged deliver was also in count 1. violations of 8 for harbor- U.S.C. charged Counts 3 and Roberto Valtierra- the three aliens at the Leedale house. conduct relevant of additional frivolous denial individuals” for viously to other due § 1324 offense. department to Patino’s probation aliens’ release. PSR, an addendum
responded
govern-
appeal, the
first time on
For the
entitled to an
was not
arguing that Patino
Patino was not entitled
argues that
ment also
Patino had not admitted
adjustment because
responsi-
adjustment for
to an
comprising the offense.
conduct
all of the
bility
denied additional
he
department
probation
Specifically,
relating to his
to admit that he
that Patino failed
claimed
duty to
Patino had no
offense.
fees for the re-
negotiated for and received
affirmatively
those facts.
admit
of some of the aliens.
lease
1(a). Further,
Patino did
n.
objections
frivolously deny
sentencing,
probation
At
*4
legal
objected to the
to the PSR.
§
that
offenses
expressed
opinion
the
role)
(leadership
given his
characterization
by one
receipt
the
of fees
involve
“typically”
not,
actions;
in that document or
he did
observation
people. Based
that
or more
deny any
stated in the PSR
sentencing,
alone,
department concluded
probation
the
Further,
fail-
Patino’s
concerning
role.3
responsibility
accepted
not
Patino had
that
leadership role was
acknowledge his
ure to
comprising
offense of
“for the
justification
denying
for
not offered
aas
discussion, the
further
Without
conviction.”
adjustment,
responsibility
ei-
PSR, denying Pati-
adopted the
district court
gov-
sentencing. The
in
or at
ther
the PSR
adjustment
responsi-
for
no an
responses,
now raise Patino’s
ernment cannot
bility.
proba-
offered to controvert
which were
position
that Patino
government’s
The
is
played a
position that he
department’s
tion
(1)
that he
or
denied
to admit
failed
which are not inconsis-
leadership role and
Houston; (2) negotiated
transported
to
PSR,
to
tent with the facts stated
release;
for
fees
for Cesar’s
collected
adjust
justify
court’s refusal to
1 of the
other aliens.
the release of
Count
for
alleges that Patino
indictment
of the sentenc
The determination
...
to the
“within the United States
Cesar
responsibility
is
ing judge on
in
store
parking lot
front
Weiner’s
on review.
to
deference
entitled
Houston,
Freeway
at 11703 Eastex
located
5;
n.
see also
U.S.G.G.
truck.”
indictment
in a
The
Texas
(5th
114, 120
v.
transporting the
charge Patino with
does not
Cir.1995). Nonetheless,
depart
failure to
accepting
two aliens to Houston or with
other
for
downward
Therefore,
any
for the release
aliens.
fees
error when
deci
constitutes reversible
by
government consti-
the acts identified
any foundation. United
sion is made without
to
of-
conduct relevant
additional
tute
Calverley,
F.3d
States
fense,
comprising the
rather
than conduct
Cir.1993),
adopted on
opinion reinstated
charged.
(5th Cir.1994),
de
cert.
reh’g, 37
F.3d
—
-,
nied,
115 S.Ct.
truck to
that he
Patino admitted
drove
(1995).
adequately ad
L.Ed.2d 145
collect fees
and that he
Houston
comprising
not mitted the conduct
of the aliens. Patino did
for the release
falsely deny
or did not
actually
fees.
and either admitted
deny
that he
received
by
relevant conduct identified
Further,
any
the additional
Patino’s statement that
therefore,
was,
government. There
would have been for
benefit
he collected
district court’s refusal
individuals,
in foundation
which was offered
other
grant
posi-
a two-level
probation department’s
response to
resen
Patino must be
played
leadership
role
that Patino
tion
or
tenced.
not amount to
false
does
duct,
play
role.
primary argument
he did
3. Patino’s
engaged
factually
con-
similar
co-defendants
justified
THE
ROLE IN
OFFENSE
which
a two-level
PATINO’S
enhancement
AFFIRMED.
Patino also claims that the district
by increasing his base offense
court erred
The district court’s determination that Pa-
aggravating
points
level two
for his
role
accept responsibility,
jus-
tino failed to
which
3Bl.l(c)
pursuant
guideline
adjust
tified its refusal
downward two
increase if
(providing for two level
REVERSED,
levels is
Patino’s sentence is
leader,
organizer,
manager
super
or
was an
VACATED, and the case is REMANDED
any
activity involving
criminal
fewer
visor
resentencing.
fac
participants).
than 5
played
tual determination that Patino
a lead
GARZA,
Judge,
EMILIO M.
Circuit
ership
in the offense is
reviewed
specially concurring:
Narvaez,
clear error. United States v.
—
denied,
162, 166
Cir.1994),
cert.
I concur in the result reached
the ma-
U.S. -,
Both the and our case law
vide that a court’s determination responsibil-
as to a defendant’s
ity great is entitled to deference. See comment, (n. 5) (“The § 3E1.1 sen-
tencing judge unique position is in a to evalu- responsibili-
ate a defendant’s reason, ty. For this determination COCA-COLA BOTTLING COMPANY OF sentencing judge is entitled to defer- SOUTHWEST, Petitioner, THE review.”); ence on United States v. (5th Cir.1995) (“In light 120-21 commentary, tWs we hold that the correct COMMISSION, FEDERAL TRADE apply standard review district Respondent. accep- court’s refusal to credit a defendant’s No. 94-41224. ‘great tance of is the defer- standard.”). ence’ I find these statements Appeals, United States Court of interpretation inconsistent with the we offer Fifth Circuit. today, wMch creates a mechanistic checklist may which a defendant acMeve a two- June pleads level reduction. A defendant who
guilty, mechanically who reads and admits to indictment, alleged in questions “no
who then offers comment” to
about other relevant conduct establishes
“significant evidence” of of re-
sponsibility, application note wMch presumption effect establishes that he “clearly
has established” of re- *7 3El.l(a).
sponsibility, under On such
facts, sentencing deny court can an ac-
ceptance-of-responsibility only by reduction
finding significant “conduct of the defendant
that is inconsistent with such 3E1.1, responsibility,” U.S.S.G.
(n. 3). Vance, See United States v. Cir.1995) (holding, 1159-60 “[¿Insignificant
the amended outweigh
evidence cannot trial,
before truthful admission of the ele-
ments and absence of a false conduct”). technically
denial of
find it hard to believe the drafters of the court, that a intended deference,”
supposedly deserving “great deny
would have no discretion a reduction to a defen- pleaded guilty,
dant who the facts admitted indictment, then,
alleged through- in