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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-2521
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JUAN SAMUEL GONZALES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
( April 15, 1994 )
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
PER CURIAM:
BACKGROUND
On January 24, 1993, Houston Police Department Officer Corley
observed Juan Gonzales and co-defendant Salvador Infante get out of
a cab at the bus terminal. Officer Corley noticed that the pair
visually scanned the area but did not speak to one another.
Gonzales retrieved a blue hardside suitcase from the back of the
cab and carried on his shoulder a gray bag; Infante carried a black
canvas suitcase and a backpack. As Infante was heading to the
ticket line, he turned and motioned for Gonzales to continue to the
back toward the seating area. Corley then observed Gonzales

standing against a wall in the seating area staring and rapidly
scanning the waiting area as he clutched the shoulder bag tightly.
Sergeant Ellis and DEA Agent Roach accompanied Corley, but remained
a short distance away as he approached and questioned Gonzales.
Corley walked up to Gonzales, got out his identification, showed it
to him, said he was a police officer, and asked if could talk to
him for a minute; Gonzales immediately dropped the shoulder bag to
the ground and Corley noticed that it sounded very solid unlike
clothing. As Corley asked Gonzales about his travel plans,
Gonzales became more and more nervous. Then Corley asked him if
the bags were his; Gonzales responded that neither bag was his and
that he had never seen them before. Considering the bags
abandoned, Corley searched the bags and found eight kilos of
cocaine in the shoulder bag. Gonzales was arrested; shortly
thereafter, a trained dog alerted to Infante's suitcase; Infante
also disclaimed ownership, but was in possession of the claim check
for the suitcase. The officers found nine kilos of cocaine in the
suitcase.
On February 24, 1993, Gonzales pleaded not guilty at his
arraignment. On March 15th, he filed a motion to suppress the
cocaine seized as the product of a tainted search. In a letter
dated March 22, 1993, counsel for Gonzales asked the Government to
allow Gonzales to make a conditional guilty plea in order that he
might preserve his eligibility for a three-level adjustment under
§ 3E1.1 and his ability to appeal an adverse ruling on the
suppression motion. The Government declined the offer. At the
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beginning of the trial, the parties agreed to carry the suppression
hearing with a bench trial. The Government called Officer Corley,
Officer Ellis, and Agent Roach as witnesses; Gonzales testified for
the defense. After all of the testimony, the district court denied
the motion to suppress and found the defendant guilty on both
counts. In accordance with § 2D1.1, the probation officer
determined the base offense level to be 34 (at least 15 kilograms
but less than 50 kilograms of cocaine), based on the laboratory
results showing a total of 29.2 kilograms of cocaine seized from
both bags. A two-level adjustment was made for acceptance of
responsibility. Applying a total offense level of 32 to a criminal
history category of III yielded a guideline imprisonment range of
151 to 188 months. At the sentencing hearing, the defendant's
objection to the denial of the additional point for acceptance of
responsibility notwithstanding, the district court adopted the PSR
recommendations and sentenced Gonzales to 168 months on each count
to run concurrently.
OPINION
Gonzales argues that the district court erred in refusing to
grant an additional one-level reduction for acceptance of
responsibility pursuant to § 3E1.1(b)(2). This Court reviews a
district 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. United States v. Tello, 9 F.3d
3

1119, 1122 (5th Cir. 1993) (internal citations and quotation
omitted). Appellate 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. United States v.
Howard, 991 F.2d 195, 199 (5th Cir.), cert. denied, 114. S.Ct. 395
(1993). Application of the guidelines is a question of law subject
to de novo review. Id.
Section 3E1.1(b) established a tripartite test to determine
entitlement to the additional one-level decrease for acceptance of
responsibility. United States v. Mills, 9 F.3d 1132, 1136 (5th
Cir. 1993). The sentencing court is directed to grant the
additional one-level decrease in the defendant's offense level if
(i) the defendant qualifies for the two-level decrease under §
3E1.1(a) for acceptance of responsibility; (ii) the defendant's
offense level is 16 or higher before the two-level reduction under
§ 3E1.1(a); and (iii) the defendant timely "`assisted authorities'"
by taking "one--but not necessarily both--of two `steps': either
(a) `timely' furnishing information to the prosecution about the
defendant's own involvement in the offense (subsection (b)(1)); or
(b) `timely' notifying the authorities that the defendant will
enter a guilty plea (subsection (b)(2))." United States v. Tello,
9 F.3d at 1124-25. To satisfy the third element of the test1, the
defendant's notification to the Government and the district court
1Section 3E1.1(b)(1) is not at issue in this case.
4

must be made sufficiently early so that the Government can avoid
preparing for trial and the court is able to manage its calendar
efficiently
without
taking
the
defendant's
trial
into
consideration. Id. at 1125-26; § 3E1.1(b)(2). If the defendant
satisfies all three prongs of the test, the district court is
"without any sentencing discretion whatsoever" to deny the
additional one-level decrease. Mills, 9 F.3d at 1139.
Because Gonzales received the basic two-level downward
adjustment under § 3E1.1(a) and because his offense level prior to
such adjustment was 34, the first two prongs of the test were
satisfied. With respect to the third prong, the district court
considered, but overruled without comment, Gonzales' argument that
the conditional plea offered by his counsel's letter of March 22nd
evinced an intent to notify timely the Government and the court
that he intended to plead guilty. Although Gonzales might have
saved the court some time by agreeing to proceed with a bench
trial, it is undisputed that (i) Gonzales did not at any time enter
an actual guilty plea, and (ii) the suppression hearing was in
effect the substantive equivalent of a full trial, which required
full preparation by the Government and allocation of the court's
resources. See United States v. Morillo, 8 F.3d 864, 872 (1st Cir.
1993) (conditional offer to plead does not meet standard of §
3E1.1(b)(2), because until the contingency is removed, the
prosecution must still prepare for trial and the court must still
reserve calendar time). Accordingly, the district court did not
5

clearly err in refusing to treat the conditional offer to plead or
the acquiescence to a bench trial as a notification within the
purview of § 3E1.1(b)(2).
AFFIRMED.
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