Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-7809

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO TELLO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas

(December 8, 1993)
Before JOHNSON, WIENER and DeMOSS, Circuit Judges.
WIENER, Circuit Judge.
Defendant-Appellant Francisco Tello appeals the sentence
imposed under the United States Sentencing Guidelines (U.S.S.G.)
following his conviction on a plea of guilty to a charge of aiding
and abetting possession with intent to distribute marihuana. Tello
contests the court's finding under U.S.S.G. § 3C1.1 that he
obstructed justice by lying to the probation officer who conducted
the presentence investigation. Tello also insists that even though
he was awarded the basic 2-level decrease for acceptance of

responsibility under § 3E1.1(a) (hereafter, "subsection (a)"), he
was unlawfully denied an additional 1-level decrease in his offense
level for the timeliness of his acceptance of responsibility,
pursuant to U.S.S.G. § 3E1.1(b) (hereafter, "subsection (b)").
We find no reversible error in the finding of obstruction of
justice, but agree that the court erred as a matter of law in
denying Tello the extra 1-level reduction for timely acceptance of
responsibility. As we also find that this error cannot be found
harmless under the instant circumstances, we vacate Tello's
sentence and remand for resentencing.
I
FACTS AND PROCEEDINGS
The relevant facts are essentially undisputed. Following his
indictment in Missouri and contemporaneously with the transfer of
his case to the Southern District of Texas in accordance with
Fed. R. Crim. P. 20, Tello was moved to Texas for the announced
purpose of pleading guilty there. He did so immediately upon his
arrival in Texas, and was thereafter convicted on the basis of his
plea. Routinely, sentencing was deferred pending (1) investigation
by the probation department, (2) completion of that investigation,
(3) submission to the court of the probation department's
presentence investigation report (PSR), and (4) passage of the time
allowed for the defendant to consider objecting to the PSR.
During the course of the presentence investigation, the
probation officer questioned Tello in the presence of his attorney,
asking among other things whether Tello had been arrested
2

previously. The probation officer warned Tello that lying about
his prior criminal record could result in increased punishment on
grounds of obstruction of justice. Tello admitted to a 1973
conviction but denied that there had been any additional arrests.
The latter statement proved to be false when the probation
department discovered a record of prior arrests and convictions.
Confronted with this information by the probation officer, Tello
acknowledged that he had been arrested previously.
As a result of the recommendation in the PSR that Tello's
offense level be increased for obstruction of justice, his attorney
had Tello undergo an in-depth psychological examination. The
examining physician reported that Tello paid little attention to
details and might have some difficulty recalling them, concluding
that "[i]t appears that [Tello] does seem to forget or lose details
of his past life consistent with his cognitive style." The doctor
observed that Tello had problems recalling details of his arrest
record even when prompted.
The district court gave little credence to Tello's argument
that his psychological condition explained his forgetfulness and
excused his obstruction of justice. In fact, the doctor's report
bolstered the court's conclusion that Tello had not suffered memory
loss. The court observed that Tello had furnished extensive
information about his entire background to the examining physician.
Following the recommendations contained in the PSR, the court
increased Tello's offense level by two for obstruction of justice
pursuant to § 3C1.1.
3

Continuing to follow the PSR's recommendations, the court
awarded Tello a 2-level decrease in his offense level for
acceptance of responsibility pursuant to subsection (a). The court
refused, however, to grant an additional 1-level decrease under
subsection (b). The reason given by the court for denying this
additional 1-level reduction was Tello's obstruction of justice in
lying to the probation officer, thereby causing the investigating
officer to expend more time and effort to establish Tello's full
record of arrests and convictions than would have been necessary if
Tello had been forthcoming.
Consistent with the PSR, the district court determined Tello's
offense level to be 24 and his criminal history category to be I.
The 2-level increase was assessed for obstruction of justice and
the 2-level decrease was awarded for acceptance of responsibility
but effectively canceled each other out; and, as the court refused
to award the additional 1-level reduction for acceptance of
responsibility under subsection (b), Tello's offense level remained
at 24. That level, in combination with Tello's criminal history
category I, produced a sentencing range of 51 to 63 months on the
sentencing table. The court sentenced Tello to a prison term of 57
months, a supervised release term of three years, and a special
assessment of $50; and he timely appealed his sentence.
II
ANALYSIS
A.
Standard of Review
We review the sentencing court's factual finding of
4

obstruction of justice for clear error.1 We also review the
court's finding on acceptance of responsibility for clear error but
"under a standard of review `even more deferential than a pure
clearly erroneous standard.'"2 A finding is clearly erroneous
when, although some evidence supports the decision, we are "left
with the definite and firm conviction that a mistake has been
committed."3 "Review of sentences imposed under the guidelines is
limited to a determination whether the sentence was imposed in
violation of law, as a result of an incorrect application of the
sentencing guidelines, or was outside of the applicable guideline
range and was unreasonable."4
B.
Obstruction of Justice
Section 3E1.1 of the Guidelines directs the sentencing court
to increase the defendant's offense level by 2 for obstruction of
justice: "If the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
during the investigation, prosecution, or sentencing of the instant
1 United States v. Ainsworth, 932 F.2d 358, 362 (5th Cir.),
cert. denied, U.S. , 112 S.Ct. 346, 116 L.Ed.2d 286.
2 United States v. Watson, 988 F.2d 544, 551 (5th Cir.
1993) (quoting United States v. Kinder, 946 F.2d 362, 367 (5th
Cir. 1991), cert. denied, U.S. , 112 S.Ct. 1677, 118
L.Ed.2d 394 (1992)), petition for cert. filed, U.S.L.W.
(U.S. July 29, 1993) (No. 93-5407).
3 United States v. United States Gypsum Co., 333 U.S. 364,
395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).
4 United States v. Matovsky, 935 F.2d 719, 721 (5th Cir.
1991) (citing 18 U.S.C. § 3742(e)).
5

offense, increase the offense level by 2 levels."5 Application
Note 3(h) explains that § 3C1.1's enhancement applies when, inter
alia, the defendant provides "materially false information to a
probation officer in respect to a presentence or other
investigation for the court."6 At the sentencing hearing the court
stated:
[T]he Court is going to find that the Defendant did
obstruct
justice
by
providing
materially
false
information to a probation officer who was conducting the
Pre-Sentence Investigation Report here in that, when
quizzed about prior arrests or convictions, the Defendant
left out that he had a prior conviction as recent as
1986, with regards to misdemeanor possession of
marijuana, and he left out his prior criminal history as
far as in the--juvenile. The Court is going to find that
definitely the misdemeanor marijuana conviction was
materially false in that it did have to be counted with
regards to criminal history category here.
Given the court's consideration of the PSR, of Tello's
objections, of the physician's report, and of all other relevant
data, we conclude that the court was not clearly erroneous in its
findings of fact. We also conclude that the court correctly
interpreted and applied § 3C1.1. We therefore affirm the district
court's finding of obstruction of justice and the resulting
assessment of a 2-level increase in Tello's offense level.
C.
Acceptance of Responsibility
1.
2-Level Decrease under § 3E1.1(a)
Even though the PSR recommended a 2-level increase for
obstruction of justice, it also recommended a 2-level decrease for
5 United States Sentencing Commission, Guidelines Manual,
§ 3C1.1 (Nov. 1993).
6 U.S.S.G. § 3C1.1 (n.3(h)).
6

the basic acceptance of responsibility under subsection (a). The
district court agreed, stating:
The Court will give [Tello] a minus 2 for acceptance of
responsibility, although traditionally when there is
obstruction of justice, a[n] - - acceptance of
responsibility is normally not recommended, but in this
case he did early on agree to go ahead and plead guilty
in Rule 20 down here, and the Court is going to proceed
to give him the minus 2 . . . .7
The court's observation concerning the tension between acceptance
of responsibility and obstruction of justice is recognized in the
guidelines:
Conduct resulting in an enhancement under §3C1.1
(Obstructing or Impeding the Administration of Justice)
ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct. There may,
however, be extraordinary cases in which adjustments
under both §§3C1.1 and 3E1.1 may apply.8
The government does not contest the court's grant of the 2-
level reduction for acceptance of responsibility under subsection
(a), apparently agreeing with the court that this is one of those
"extraordinary cases" contemplated in that application note. We
note in passing that the court's findings as to timelinessSQthat
Tello had demonstrated his acceptance of responsibility "early on"
by agreeing to plead guilty, but had not obstructed justice until
the final stages of the proceedings, i.e., during the post-plea,
post-conviction, presentence investigation stageSQwill prove
central to our analysis of the additional 1-level decrease under
subsection (b) which follows.
7 Emphasis added.
8 U.S.S.G. § 3E1.1 (n.4).
7

2.
Additional 1-Level Decrease under § 3E1.1(b)
The principal significance of the instant case as one of first
impression in this circuit lies in the sentencing court's refusal
to award Tello the additional 1-level decrease. Subsection (b) was
added to the Guidelines effective November 1, 1992.9 As recognized
implicitly by the government in its vigorous efforts to support the
district court's denial of that additional 1-level decrease, the
issue here is whether or not subsection (b) is governed strictly by
the timeliness of the defendant's acceptance of responsibility.10
Lack of timeliness was obviously not the reason for the district
court's denial of the additional 1-level reduction to Tello.
Rather, after noting the rarity of its decision to grant
simultaneously a 2-level increase for obstruction, and a 2-level
decrease for acceptance, the court stated that it would "definitely
not" grant the additional 1-level decrease under subsection (b)
"for the reason that there was obstruction of justice here." As
shall be shown, however, even though Tello's lying did cause the
probation officer to spend additional time investigating Tello's
record, that mendacity did not cause the government to prepare for
9 See U.S.S.G., App. C, amend. 459.
10 Although Tello had pleaded guilty on October 8, 1992,
his PSR was not completed and he was not sentenced until after
November 1, 1992, so he was properly sentenced under the version
of the Guidelines in effect at the time of his sentencing, i.e.,
the version that became effective on November 1, 1992, except to
the extent any newly adopted provision would result in an
increase in sentence and thereby implicate the proscription of an
ex post facto provision of the United States Constitution. See
18 U.S.C. § 3553; United States v. Suarez, 911 F.2d 1016, 1021
(5th Cir. 1990).
8

trial or interfere with the court's efficient management of its own
calendar.
All accept that the defendant bears the burden of proving
entitlement to a decrease in offense level for acceptance of
responsibility.11 And, as noted earlier, we review a district
court's
determination
whether
a
defendant
has
accepted
responsibility by applying a more deferential standard of clear
error than usual.12 But here the fact of timeliness of Tello's plea
is indisputable; it is the legal significance of timeliness under
new subsection (b), and not the underlying facts, that is here
disputed.
This case truly turns on statutory construction, albeit under
the Guidelines. Our starting point, therefore, is the unambiguous
language of the applicable statute, Guideline § 3E1.1:
§3E1.1.
Acceptance of Responsibility
(a)
If the defendant clearly demonstrates
acceptance of responsibility for his
offense, decrease the offense level by 2
levels.

(b)
If the defendant qualifies for a decrease
under subsection (a), the offense level
determined prior to the operation of
subsection (a) is level 16 or greater,
and
the
defendant
has
assisted
authorities in the investigation or
prosecution of his own misconduct by
taking one or more of the following
steps:
11
United States v. Watson, 988 F.2d 544, 551 (5th Cir.
1993), petition for cert. filed, U.S.L.W. (U.S. July
29, 1993) (No. 93-5407).
12 Id.
9

(1)
timely
providing
complete
information to the government
concerning his own involvement
in the offense; or
(2)
timely notifying 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,
decrease
the
offense
level
by
1
additional level.

Prior to November 1, 1992, § 3E1.1 dealt solely with the 2-level
reduction which is now contained entirely in subsection (a).13
Subsection (b), with its additional 1-level reduction, sprang forth
full-grown from the 1992 amendments.
The basic acceptance of responsibility mandate is found in the
imperative statement that is subsection (a). Although the
sentencing court is given considerable latitude in determining
whether the defendant has clearly demonstrated acceptance of
responsibility, once an affirmative determination of that fact is
made, no sentencing discretion remains: Subsection (a) directs the
sentencer to "decrease the offense level by 2 levels."
Then, but only then, may subsection (b)'s additional 1-level
reduction for the timeliness of the defendant's acceptance of
responsibility be considered: Unless the sentencing court
determines that the defendant has accepted responsibility for
purposes of subsection (a), subsection (b) simply does not come
13 See Guidelines Manual, App. C, amend. 459.
10

into play. Here, the court's determination that Tello qualified
for the 2-level decrease under subsection (a) opened the door to
consideration of subsection (b). Structurally, though, finding the
defendant eligible for the 2-level decrease under subsection (a) is
the first element of subsection (b)'s tripartite entitlement test.14
Paralleling subsection (a)'s imperative, subsection (b)'s
tripartite test directs the sentencing court to grant that extra 1-
level decrease in the defendant's offense level if three elements
are found to co-exist: 1) the defendant qualifies for the basic 2-
level decrease for acceptance of responsibility under subsection
(a); 2) the defendant's offense level is 16 or higher before
reduction for those two levels under subsection (a); and 3) the
defendant timely "assisted authorities" by taking oneSQbut not
necessarily bothSQof two "steps": either (a) "timely" furnishing
information to the prosecution about the defendant's own
involvement in the offense (subsection (b)(1); or "timely"
notifying the authorities that the defendant will enter a guilty
plea (subsection (b)(2). As shall be seen, the "authorities"
referred to in subsection (b) are the government as prosecutor and
the trial court.
Here, the first two elements of subsection (b)'s three-element
test are indisputably present: First, the court found, and the
14 Given the circumstances of the district court's denial
of a subsection (b) 1-level decrease to Tello, we are compelled
to add that § 3E1.1 contains no concomitant qualifier that a
defendant must not have been guilty of obstructing justice; no
mention of that at all.
11

government does not contest, that Tello qualified for a 2-level
decrease under subsection (a). Second, Tello's offense level of 24
(before application of such 2-level decrease) clearly exceeds the
minimum qualifying level of 16. Only the third element remains to
be considered: whether Tello provided the necessary assistance to
authorities by taking either or both of the timeliness "steps"
defined in subsections (b)(1) and (2).
Neither Tello nor the government adverted to subsection
(b)(1)'s "step," i.e., "timely providing complete information to
the government concerning [Tello's] own involvement in the
offense." Therefore the district court was not required to
consider it and neither are we. The district court did not
consider subsection (b)(2)'s "step" either, but that step is the
main focus of Tello's argument in support of his claim of
entitlement to the extra 1-level reduction, just as it is the main
focus of the government's argument in support of the sentencing
court's denial of that extra 1-level decrease. We therefore
examine § 3E1.1(b)(2) microscopically.
In parsing the step defined in subsection (b)(2), we see that
it comprises two facets. For a defendant to be "timely" in
notifying the "authorities" of his intention to enter a plea of
guilty, such notification must occur so "early on" that it
1) permits "the government to avoid preparing for trial," and
2) permits "the court to allocate its resources efficiently."
Although the court here made a finding of timeliness in reference
to its conclusion to "give him the minus 2 [under subsection (a)],"
12

that finding is applicable for all purposes of this case, including
both facets of the (b)(2) step. The first of those facets (trial
preparation) is a given: The sentencing court foundSQand the
government does not contestSQthat Tello "did early on agree to go
ahead and plead guilty in Rule 20 down here." That leaves only the
second facet for our consideration.
It is on this second facet of the (b)(2) "step" that the
government concentrates its regrettably nonsensical arguments. It
does so by mischaracterizingSQor at least misreadingSQthe Commentary
that follows the text of § 3E1.1. Typical of the Guidelines,
§ 3E1.1's "Commentary" comprises two parts: "Application Notes" and
"Background." Only new Application Note 6 addresses new subsection
(b)'s new 1-level decrease.
After reiterating the tripartite test, stressing that the
"timeliness of the defendant's acceptance of responsibility is
. . . context specific,"15 and observing that the "conduct
qualifying for a decrease in offense level under subsection (b)(1)
or (2) will occur particularly early in the case,"16 Application
Note 6 equates the timeliness of the notification by the defendant
of his intention to enter a plea of guilty with the presence of the
two functional facets that we have identified in the text of
subsection (b)(2): 1) the prosecution's ability to avoid
preparation for trial, and 2) the court's ability to allocate its
resources efficiently. In explaining the first facet, Application
15 U.S.S.G. § 3E1.1 (n.6) (emphasis added).
16 Id. (emphasis added).
13

Note 6 simply repeats verbatim the text of the Guidelines. But in
explaining the second facet, Application Note 6 truly clarifies the
meaning of the somewhat elastic phrase, "allocate [the court's]
resources efficiently." This phrase, we are told, means that the
defendant's notification to authorities of his intention to plead
guilty must come "at a sufficiently early point in the process so
that . . . the court may schedule its calendar efficiently."17
The point we make, somewhat ponderously, is that the
timeliness required for the defendant to be entitled to the extra
1-level decrease applies specifically to the governmental
efficiency to be realized in twoSQbut only twoSQdiscrete areas:
1) the prosecution's not having to prepare for trial, and 2) the
court's ability to manage its own calendar and docket, without
taking the defendant's trial into consideration. Of equal
importance in the instant case is that which the timeliness of step
(b)(2) does not implicate: time efficiency for any other
governmental function, including without limitation the length of
time required for the probation office to conduct its presentence
investigation, and the "point in time" at which the defendant is
turned over to the Bureau of Prisons to begin serving his sentence.
Yet both of those totally inapposite temporal efficiencies are
precisely what the government would have us import interstitially
into § 3E1.1. Here's how.
The government starts with the second paragraph of the
Background portion of the Commentary under § 3E1.1, which states,
17 Id. (emphasis added).
14

in pertinent part
Subsection (a) provides a 2-level decrease in
offense level. Subsection (b) provides an additional 1-
level decrease for a defendant at offense level 16 or
greater prior to operation of subsection (a) who both
qualifies for a decrease under subsection (a) and has
assisted authorities in the investigation or prosecution
of his own misconduct by taking one or more of the steps
specified in subsection (b). Such a defendant has
accepted responsibility in a way that ensures the
certainty of his just punishment in a timely manner,
thereby appropriately meriting an additional reduction.18
The government's narrow focusSQout of context and in a vacuumSQis
on the above-emphasized third sentence of that paragraph. The
government equates the ensuring of the certainty of a defendant's
just punishment in a timely manner with ensuring that the defendant
will commence to serve his sentence in a timely manner and that the
probation office will not be required to spend an inordinate amount
of time verifying the defendant's criminal record. Even out of
context, that is an impermissibly strained reading of the sentence.
The phrase "in a timely manner" is clearly intended to modify the
preceding phrase, "ensures the certainty of his just punishment,"
not simply the single preceding word, "punishment." More
significantly, the government does not noticeSQor refuses to
noticeSQthat nowhere in the sentence do the words commence or serve
appear. Finally, the government does not recognizeSQor refuses to
recognizeSQthat the subject sentence is written in the indicative
mood ("Such a defendant has accepted responsibility."). It is not
written, as the government would read it, in the imperative mood as
18 U.S.S.G. § 3E1.1 (backg'd) (emphasis added).
15

though it said, "Such a defendant shall [i.e., `must also,' or `is
required to'] accept responsibility . . . ."
Clearly, then, the third sentence of the second paragraph of
the Background does not add another criterion; it makes a
declarative statement. It tells the sentencing court that a
defendant who has satisfied all elements of the tripartite test,
including informing authorities of his intent to plead guilty
sufficiently early to permit (a) the prosecution to avoid trial
preparation, and (b) the court to manage its calendar efficiently,
has thereby qualified for the additional 1-level reduction. Such
a defendant, the subject Background sentence declares to the
sentencing court, has met (not must yet meet) the core purpose of
subsection (b), i.e, ensuring "early on" the certainty that the
defendant will be justly punished. That purpose is not, as the
government would have us believe, concerned at all with when the
defendant begins to serve his sentence; it is concerned with when
there is certainty thatSQsooner or laterSQthe defendant will be
punished.
The subject Background sentence informs the court that a
defendant who has satisfied all three elements of subsection(b)'s
tripartite test is entitled toSQand shall be affordedSQan additional
1-level reduction. By no stretch can that sentence be interpreted
to specify yet another criterion for entitlement to the decrease,
whether it be the timely commencement of serving time, or the
efficient management of its calendar by any government agency other
than the courtSQsuch as probation.
16

Even though the sentencing court failed to address the
elements of the tripartite test, the government argues that the
court's denial of the additional 1-level reduction under
subsection (b) "for the reason that there was obstruction of
justice here" should be affirmed. The court was correct, insists
the government (without citing any supporting authority), because
"the extraordinary circumstances of the case warranted a limitation
of that reduction." The government attempts to bolster this bald,
conclusionary statement by making another: Even though the
circumstances "warranted a 2-level reduction" for acceptance of
responsibility, argues the government, "Tello's guilty plea was
governed not by intent to admit to his criminal behavior in a
timely fashion but, rather, as the court found, to conceal the
breadth of his criminal conduct. This factor alone supports the
district court's refusal to reduce Tello's offense level by 1." We
could not disagree more strongly.
First, we cannot stretch the statements of the district court
far enoughSQeven by implicationSQto reach the conclusion, attributed
to them by the government, that the "court found" any such thing.
Moreover, such a bizarre self-contradictory position would be
nonsensical: We cannot imagine that any sentencing court
would conclude, on the one hand, that a defendant has rushed to
admit criminal conduct for the purpose of concealing the breadth of
his criminal behavior, while concluding, on the other hand, that
the same defendant has "clearly demonstrate[d] acceptance of
17

responsibility for his offense."19 Yet this is precisely what the
government would have us believe that the district court did here.
We find nothing in the transcript of the district court's remarks
or elsewhere in the record of this case to support the conclusion
that the district court so found, and the government cites us to
nothing in support of such a conjecture.
Nevertheless, the government proceeds to advance more, equally
flawed logic:
Tello's strict application of § 3E1.1 that ties
acceptance of responsibility to the timeliness of the
entry of the plea as opposed to the character of the
defendant's expression of remorse, would obligate every
district court to automatically reduce offense levels by
three whenever a prompt guilty plea was made.20
We are unable to read anything into § 3E1.1, or into Tello's
interpretation of it, that "ties acceptance of responsibility to
the timeliness of the entry of the plea." To the contrary, the
element of timeliness is nowhere to be found in any aspect of the
basic 2-level decrease for acceptance of responsibility. In fact,
a plea of guilty is not even an essential element of a finding of
acceptance of responsibility under subsection (a).21
What the government's argument does obfuscate, though, is that
timeliness is most certainly an essential aspect of the tripartite
entitlement test of subsection (b). In fact, timeliness is the
very heart of the third element, assisting authorities. Only if
19 U.S.S.G. § 3E1.1(a).
20 Emphasis added.
21 See § 3E1.1, comment. (n.2).
18

the sentencing court findsSQin addition to acceptance of
responsibility vel non under subsection (a) and the requisite
offense level of 16 or higherSQthat the defendant timely took
either or both of the "steps" of subsection (b)(1) and (2), may the
courtSQnay, must the courtSQaward the extra 1-level decease,
thereby, in conjunction with the two levels under subsection (a),
bringing the total decrease in levels to three.
Not so for the obverse. For even if the court finds
acceptance vel non, mandating a 2-level decrease under subsection
(a), as well as an offense level of 16 or higher, the court still
need notSQnay, must notSQaward the third 1-level decrease unless the
court also finds that the defendant assisted authorities by timely
taking either or both of the "steps" of subsection (b)(1) and (2).
Obviously, then, the government is just plain wrong in arguing
that Tello's reading of § 3E1.1 produces an all-or-nothing
proposition, i.e., forces the court to award either a 3-level
reduction or none. Although there can never be but a single
decrease in level for acceptance of responsibilitySQbecause
subsection (b) is inoperable in the absence of subsection (a)'s 2-
level decreaseSQthe converse is not true: There can be (and
frequently will be) a 2-level decrease under subsection (a) without
the extra 1-level decrease being required or awarded under
subsection (b). Thus, depending on all of the relevant facts,
including timeliness, there could be a 3-level, or a 2-level, or a
"0"-level decrease for acceptance of responsibility.
19

More significant than its failed effort to pillory Tello's
argument is the government's failure to cite any authority in
support of the sentencing court's obstruction-of-justice reason for
denying Tello the additional 1-level decrease under subsection (b).
The explanation for this citational void is simple: There is no
such authoritative support to be found. Nowhere in the Guidelines
or their Commentaries, nor in the jurisprudence, is there any
authority for the court to deny the subsection (b) decrease on
grounds of obstruction of justice, particularly when, as here, the
court has expressly elected not to deny the basic subsection (a)
decrease on grounds of obstruction.
We hold that the district court erred in the reason given for
denying the extra 1-level reduction of subsection (b) SQ
obstruction of justice. First, that is simply inapposite; as long
as obstruction does not cause the prosecution to prepare for trial
or prevent the court (as distinguished from the probation office)
from managing its calendar efficiently, obstruction of justice is
not an element to be considered. When the court granted Tello the
basic 2-level reduction for acceptance of responsibility under
subsection (a), despite having found obstruction of justice and
having increased his offense level by two therefor, obstruction
became irrelevant. It evaporated from the sentencing calculus.
Nothing in the structures of § 3E1.1 or § 3C1.1 contemplates,
much less authorizes, such an internally inconsistent position as
finding basic acceptance despite subsequent obstruction, then
denying the extra "timeliness" decrease by reason of the self same,
20

late-in-the-game obstruction.22 Nonetheless, the court's denial for
that reason is not fatal if there is some other reason to be found
that supports denial.
We may always affirm a district court's ruling, made for an
invalid reason, if we are shown or can find a valid reason to
support that ruling.23 Having found the obstruction of justice
reason given by the district court for denying Tello the 1-level
reduction to be invalid, we may affirm that denial only if we can
discover some fallacy in our perception that Tello also satisfied
the third element of that testSQthe timely taking of either or both
of the steps identified in subsections (b)(1) and (2). As (b)(1)
is not at issue here, our consideration is narrowed to the
remaining "step," the one defined in subsection (b)(2). Only if
the facts found by the court or reflected in the record demonstrate
that Tello did not properly take the subsection (b)(2) step, we may
affirm the district court's denial of the extra 1-level decrease,
albeit for a reason other than the invalid one advanced by that
court. But, as we have seen, such facts show beyond cavil that
Tello did take that "step" properly.
Moreover, those same facts preclude our ability to affirm the
22 This is not to say that, under greatly different
circumstances, obstruction of justice could not constitute
discretionary grounds for denying the additional 1-level
decrease, such as when the defendant first obstructs justice in
the investigation of his offense and only subsequently admits his
guilt and cooperates with the government. See, e.g., United
States v. Booth, 996 F.2d 1395, 1397 (2d Cir. 1993).
23 Bickford v. International Speedway Corp., 654 F.2d 1028,
1031 (5th Cir. 1981).
21

district court's denial of the extra 1-level reduction, for any
reason. The one expressed by the district court is simply not
authorized by the Guidelines, either implicitly or explicitly,
particularly not in the text of § 3E1.1 or the Commentary thereto.
And any fair and reasonable reading of those provisions, even in
pari materiae with the obstruction provisions of § 3C1.1,
demonstrates beyond serious question that, given the court's basic
finding of acceptance of responsibility for purposes of subsection
(a), no alternative reason can be found under the instant facts to
justify our affirming the district court's denial of the extra 1-
level decrease under subsection (b).
Moreover, the final clause of subsection (b) eschews any court
discretion to deny the reduction. That imperative clause directs
the sentencing court to "decrease the offense level by 1 additional
level," once all the essential elements and steps and facets of the
tripartite test of subparagraph (b) are found to exist. We
conclude, therefore, that the district court erred in denying that
additional 1-level decrease in Tello's offense level for the reason
given; that no alternate reason exists as a basis for affirmance by
this court and that Tello's sentence therefore must be
reversedSQabsent a finding of harmless error.
4.
Harmless Error
Rule 52(a) of the Federal Rules of Civil Procedure provides:
Harmless
Error. Any error, defect,
irregularity or variance which does not affect
substantial rights shall be disregarded.24
24 Fed. R. Crim. P. 52(a).
22

The statutory framework for reviewing sentences under the
Guidelines is set forth in 18 U.S.C. § 3742, which provides in
pertinent part:
If . . . the sentence was imposed . . . as a
result of an incorrect application of the
sentencing guidelines, the court shall remand
the case for further sentencing proceedings
with such instructions as the court considers
appropriate."25
This statutory provision certainly reads like a per se rule. If it
were, it would pretermit review for harmless error and mandate
automatic reversal and remand upon the finding of a sentencing
error resulting from an incorrect application of the Guidelines.
The United States Supreme Court, in Williams v. United States,26 did
not read § 3742 that restrictively. In fleshing out § 3742 by
explaining the meaning of the phrase "as a result of an incorrect
application," the Court rejected a rule of automatic reversal and
adopted instead a form of harmless error analysis. The Court
pronounced that the finding of an incorrect application of the
Guidelines shifts the burden to the proponent of the
sentenceSQwhether that be the defendant or the governmentSQto
"persuade [ ] the court of appeals that the district court would
have imposed the same sentence absent the erroneous factor."27 In
a case of the same name, albeit transposed, we applied the Court's
Williams standard in determining generally whether a misapplication
25 18 U.S.C. § 3742(f)(1) (emphasis added).
26 U.S. , 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992).
27 Id., U.S. , 112 S.Ct. at 1121, 117 L.Ed.2d at
354-55 (emphasis added).
23

of the Guidelines automatically requires remand for resentencing.28
The precise type of Guidelines sentencing error case that we
review todaySQone in which the term of the sentence of imprisonment
actually imposed by the court's application of the wrong sentencing
range (here, 57 months), coincidentally happens to be available for
imposition by applying the correct sentencing rangeSQis one of
first impression in this circuit. The question is whether the
availability of the identical number of months of incarceration in
both the correct and incorrect sentence ranges ("same sentence")
automatically makes the error harmless, thereby avoiding automatic
vacatur and remand.
Albeit res nova in this circuit, a virtually identical
situation was addressed by the Eleventh Circuit in United States v.
Alpert.29 There the district court had imposed a prison term
selected from a sentencing range wrongly determined due to an error
in assessing a 2-level increase for obstruction of justice. But
coincidentally, like the number of months assessed to Tello, the
number of months assessed in Alpert happened to be available under
both the correct and incorrect sentencing ranges.30 As Alpert was
decided after the Supreme Court decided Williams v. United States,
and as the Alpert court reversed and remanded despite the
availability of the "same sentence" under both the correct and
28 United States v. Williams, 961 F.2d 1185, 1187 (5th
Cir. 1992).
29 989 F.2d 454 (11th Cir. 1993).
30 Alpert, 989 F.2d at 458 n.2.
24

incorrect sentencing range, we infer that the party interested in
sustaining the sentence and avoiding remand (there, as here, the
government) failed to proffer sufficiently persuasive evidence to
convince the appellate court that the district court would have
imposed the same sentence, absent the error.
This court too has employed a "same sentence" test in
connection with several Guidelines issues differing only slightly
from the one now before us. In United States v. Corley,31 when the
district court erroneously calculated the defendant's criminal
history score, we vacated and remanded for resentencing even though
the erroneous score did not prevent the defendant from being placed
in the correct criminal history category.32 As the district court
in Corley had departed upward, we concluded that the error was not
harmless. We reasoned that the extent of the court's upward
departure might have been influenced by the erroneously high
criminal history score.
We also remanded for resentencing in United States v.
Williams33 when the district court improperly based its sentence for
revocation of parole on conduct occurring after the original
sentence. We rejected the government's "same sentence" harmless
error argument based on the severity of the defendant's criminal
history, noting that the record indicated that the sentencing court
had not been receptive to enhancing the defendant's sentence based
31 978 F.2d 185, 186-87 (5th Cir. 1992).
32 Corley, 978 F.2d at 186-87.
33 961 F.2d 1185 (5th Cir. 1992).
25

on the criminal history factor.34
In two other similar but different "same sentence" cases,
however, we concluded that incorrect applications of the Guidelines
were harmless. In United States v. Johnson,35 in which the district
court had erroneously added two points to the defendant's criminal
history score,36 we found the error harmless; at sentencing the
court's focus had been on facts other than the ones involved in the
erroneous criminal history calculation.37 AndSQunlike the instant
caseSQthe error in Johnson did not produce an incorrect Guidelines
sentencing range.38
In United States v. Davidson,39 we found an erroneously
reasoned upward departure harmless when we recognized that the
record clearly disclosed a different, valid basis for such a
departure. We concluded that the district court almost certainly
would have departed upward, and just as certainly would have
arrived at the same sentence, had it referred to the valid rather
than invalid basis for upward departure. The record in Davidson
revealed that the valid departure basis was in fact a primary
factor in the district court's upward departure; the court had
continually referred to the valid ground when justifying the upward
34 Williams, 961 F.2d at 1187.
35 961 F.2d 1188 (5th Cir. 1992).
36 Johnson, 961 F.2d at 1189.
37 Id. at 1190.
38 Id. at 1189.
39 984 F.2d 651 (5th Cir. 1993).
26

departure, itself a mere three months.40
Tello's sentencing range as determined by the court when it
erroneously resorted to the sentencing table for offense level 24
and criminal history category I was 51 to 63 months. The court
imposed a prison term of 57 months, precisely in the middle of the
wrong range. Had the court granted the additional 1-level decrease
that we found it should have granted, Tello's correct offense level
would have been 23 which, coupled with his correct criminal history
category of I, would have produced a sentencing range of 46 to 57
months. Even though the "same sentence" of 57 months falls within
both the correct and incorrect sentencing ranges, 57 is the exact
midpoint of the erroneous range but is the topmost sentence of the
correct range. In assessing Tello's sentence, the court said only
that:
[Tello's] guideline range sentence in his case
is 51 to 63 months. The court is going to
sentence the Defendant to the custody of the
Bureau of Prisons for 57 months.
That simple, antiseptic comment reveals nothing about the
court's thought process in selecting 57 months or the fact that it
was the mid-range position in the incorrect sentencing range. The
government, as the party with an interest in preserving the "same
sentence" under a harmless error analysis, has not directed us to
anything in the recordSQand we have found nothing independentlySQ
that might persuade us, in administering the Supreme Court's
Williams test, that the district court would have imposed the same
40 Davidson, 984 F.2d at 657.
27

57 months' sentence absent the error. We therefore must follow
Williams by vacating the sentence imposed and remanding for
resentencing within the correct sentencing range of 46 to 57
months.
Thus the rule we adopt today is that even when the number of
months of a prison sentence that is imposed as a result of an
incorrect application of the Guidelines is also a number of months
that properly could be imposed by a correct application of the
Guidelines, i.e., when the same sentence is included in both the
correct and incorrect sentencing ranges, the sentence must
nevertheless be vacated and the case remanded for resentencing;
unless, that is, we are persuadedSQeither by the party seeking to
uphold the sentence through application of the harmless error
analysis, or by our own independent review of the recordSQthat the
"district court would have imposed the same sentence absent the
erroneous factor."41 Only if we were so persuaded could we affirm
the sentence originally imposed.42
As sentence selection from within the appropriate sentencing
range lies uniquely within the broad discretion of the sentencing
court, we recognize the distinct possibility that the district
court might again impose on Tello the same 57-month sentence it
41 United States v. Williams, 961 F.2d 1185, 1187 (5th Cir.
1992); Williams, U.S. , 112 S.Ct. 1112, 1121, 117
L.Ed.2d at 354-55 (1992).
42 There is a third possibility: Under unusual
circumstances, we may modify the sentence originally assessed
and, as modified, affirm rather than remand. We found such
circumstances to be present and took such action today in United
States v. Mills, slip op. .
28

originally imposed. We observe only that we have neither found nor
been shown anything in this record so clearly reflecting the
sentencing motivation of the district court that would permit us to
conclude that the same sentence would have been assessed absent the
error. Lacking such a determination, we cannot affirm the original
sentence under a harmless error analysis.
III
CONCLUSION
In finding obstruction of justice, the district court did not
clearly err when it rejected Tello's explanation for his failure to
tell the probation officer about prior arrests and convictions. We
therefore affirm the court's assessment of a 2-level increase under
§ 3C1.1.
Neither did the court err in finding that Tello clearly
demonstrated acceptance of responsibility for his offense, or in
concluding that Tello's is one of those "extraordinary cases"
contemplated by Application Note 4 to § 3E1.1, in which a defendant
both accepts responsibility and obstructs justice, and is thus
properly allowed a decrease in offense level for the former while
being assessed an increase in offense level for the latter.
Nevertheless, the district court did err in refusing to grant
Tello an additional 1-level decrease under § 3E1.1(b) after thus
finding him entitled to the 2-level decrease under § 3E1.1(a).
Tello's offense level was 24 before allowance of the 2-level
decrease under subsection (a) and was thus 16 or greater; and, on
the basis of facts found by the court and apparent from the record,
29

Tello assisted authorities in the prosecution of his own misconduct
by notifying them of his intention to enter a plea of guilty
sufficiently early in the process to permit the government to avoid
preparing for trial and the court to schedule its own calendar
efficiently.
In the face of those uncontroverted facts and circumstances,
we find unavoidable the conclusion that the sentencing court
incorrectly interpreted and applied the Guidelines as to the extra
1-level decrease in offense level under subsection (b). Having
found that Tello accepted responsibility "early on" for purposes of
subsection (a)SQdespite his obstructing justice thereafter during
the pre-sentence investigationSQthe court was not authorized by the
Guidelines to deny an additional 1-level decrease under subsection
(b) on the grounds of obstruction of justice. Neither can we find
any other reason on the basis of which the court's denial can be
salvaged. So, even though we are authorized to affirm a district
court's proper conclusion reached on the wrong reason if a correct
reason exists, we have been shown no correct reason for affirming
the court in this case and have been unable to find one on our own.
Finally, even though such erroneous denial of subparagraph
(b)'s decrease could be sustained if its effects were harmless, we
find no harmlessness here. We cannot affirm as harmless the
sentence erroneously imposed on Tello by misapplication of the
Guidelines, despite that "same sentence" being available under the
correct sentencing range. For here there is no persuasive evidence
that the court would have assessed the same sentence, absent error.
30

For the reasons set forth above, Tello's sentence is VACATED
and this case REMANDED to the district court to resentence Tello
within the range of 46 to 57 months. In all other respects the
sentence imposed by the district court is
AFFIRMED.
31