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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41061
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
ROBERTO SILVESTRE BRENES,
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas, McAllen Division
April 27, 2001
Before GARWOOD, PARKER, and DENNIS, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
In this appeal from the district court's sentence of Roberto
Brenes, the Government argues that the district court erred by
reducing the defendant's sentence for acceptance of responsibility
and qualification under the safety valve provision. A jury
convicted Roberto Brenes of conspiracy to possess with intent to
distribute more than 1,000 kilograms of marijuana and possession
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with intent to distribute 112 kilograms of marijuana in violation
of 21 U.S.C. зз 846, 841(a)(1), 841(b)(1), and 18 U.S.C. з 2. The
Government presented evidence that Brenes purchased a van used in
a drug transaction, acquired a hotel room in which part of a
transaction took place, and arranged for a meeting between the
buyer and seller. For his part in the conspiracy, Brenes received
a percentage of the marijuana sale.
In a Presentence Investigation Report ("PSR"), the probation
officer concluded that Brenes was responsible for the sale of 112
kilograms of marijuana. The probation officer recommended a base
offense level of 26 with no adjustment for acceptance of
responsibility. The officer stated that Brenes put the Government
to its burden of proof by denying the essential factual elements of
guilt and continued to assert his innocence during an interview
after his conviction. The officer also found that Brenes did not
qualify for a reduction of his total offense level under 18 U.S.C.
з 3553, the safety valve provision. Based on an offense level of
26 and a criminal history category of I, the probation officer
recommended that Brenes serve from 63 to 78 months in prison.
At the sentencing hearing, the trial court initially asked why
Brenes had not taken advantage of the safety valve. The Government
stated that Agent Rodriguez of the Drug Enforcement Administration
met with Brenes, and Brenes continued to blame his involvement in
the conspiracy on another defendant. At this point, the court
realized that Brenes may not have accepted responsibility for his
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conduct and therefore would not qualify for a reduction in his
offense level under the sentencing guidelines. See U.S.S.G. з
3E1.1(a) (1998). After the judge repeatedly questioned Brenes
about his responsibility for the crime, Brenes reaffirmed that he
was not guilty. He claimed that he purchased the van only to
transport musical instruments for his band, and that he did not
intend for the van or the hotel room to be used in the conspiracy.
The judge then informed Brenes that he could not reduce the
sentence unless Brenes was willing to accept responsibility for his
part in the crime. Brenes then admitted that he arranged the
meeting between the buyer and seller, but continued to deny that he
participated in the transaction. In response to the judge's
repeated warnings that refusal to accept responsibility would
result in an extended sentence, Brenes stated, "Well, I would take
back my word if it's a benefit for me. I would agree that I was
involved with it. . .."
Once Brenes admitted his guilt, the judge ordered a recess so
that Brenes could meet with Agent Rodriguez. After the recess, the
court questioned Agent Rodriguez and found that Brenes provided
sufficient information to avail himself of the safety valve
provision. The court subtracted two points for the safety valve
and another two points for acceptance of responsibility. The court
calculated a total offense level of 22, sentenced Brenes to serve
two concurrent 41-month prison terms followed by three-years of
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supervised release, and ordered a $200 special assessment.
DISCUSSION
The Government argues that the district court erred in
reducing Brenes' sentence. The Government claims that Brenes did
not accept responsibility and failed to qualify for a reduction of
his offense level under the safety valve provision. We review the
district court's factual determinations for clear error and the
court's interpretations of law de novo. See United States v.
Miller, 179 F.3d 961, 963-64 (5th Cir. 1999).
I. Acceptance of Responsibility
A defendant is entitled to a reduction of his offense level if
he "clearly demonstrates acceptance of responsibility for his
offense." U.S.S.G. з 3E1.1. "In rare situations a defendant . .
." who puts the Government to its burden of proof at trial ". . .
may clearly demonstrate an acceptance of responsibility for his
criminal conduct." U.S.S.G. з 3E1.1 comment (n.2). "In each
instance, however, a determination that a defendant has accepted
responsibility will be based primarily upon pre-trial statements
and conduct." Id. A district court's determination of whether a
defendant is entitled to a reduction of his offense level for
acceptance of responsibility is reviewed with even more deference
than the pure "clearly erroneous" standard. See United States v.
Flucas, 99 F.3d 177, 180 (5th Cir. 1996); United States v. Bermea,
30 F.3d 1539, 1577 (5th Cir. 1994), cert. denied, 513 U.S. 1156,
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514 U.S. 1097 (1995). We will overturn the district court's
conclusion that Brenes accepted responsibility only if it is
without foundation. See United States v. Brace, 145 F.3d 247, 264
(5th Cir. 1998) (en banc).
The record on appeal is devoid of any attempt by Brenes to
accept responsibility for his criminal conduct before or after
trial. Brenes did not admit his guilt to the probation officer who
prepared the PSR, and he continued to deny his guilt when
questioned by the judge at the beginning of the hearing. Brenes
admitted his responsibility only after the judge warned him that he
could receive a greater sentence if he continued to deny his
involvement in the drug transaction. After the judge warned him of
the consequences of refusing to accept responsibility, Brenes
stated, "Well, I would take my word back if it's a benefit to me."
Even under the deferential standard that applies to a district
court's decision, we do not think that Brenes accepted
responsibility in the manner required by the sentencing guidelines.
As the comments suggest, only in rare situations should a defendant
who put the Government to its burden of proof be afforded the
benefit of accepting responsibility. A defendant cannot accept
responsibility within the meaning of the sentencing guidelines if
his acceptance is the product of repeated warnings by the judge at
the sentencing hearing. We therefore find that the district
court's conclusion concerning Brenes' acceptance of responsibility
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is without foundation.
II. The Safety Valve Provision
The safety valve provision requires a court to impose the
guideline sentence, as opposed to a mandatory minimum sentence, if
the defendant provided the Government all information that the
defendant knows concerning the "offenses that were part of the same
course of conduct or of a common scheme or plan." 18 U.S.C. з
3553(f); U.S.S.G. з 5C1.2 (1998). The purpose of the safety valve
is to "allow less culpable defendants who fully assist [] the
Government to avoid the statutory mandatory minimum sentences."
United States v. Rodriguez, 60 F.3d 193, 195 (5th Cir. 1995). The
safety valve requires the defendant to provide information to the
Government "not later than the time of the sentencing hearing." 18
U.S.C. з 3553(f)(5).
The district court called for a recess during Brenes'
sentencing hearing in order for Brenes to meet with Agent
Rodriguez. After the recess, the court interviewed Agent Rodriguez
and determined that Brenes qualified for the benefits of the safety
valve. The Government argues that the phrase "not later than the
time of the sentencing hearing" requires a defendant to cooperate
with officials prior to the commencement of the sentencing hearing.
Brenes contends that the phrase means before or during the
sentencing hearing.
The Seventh Circuit addressed this issue in United States v.
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Marin, 144 F.3d 1085, 1091-92 (7th Cir. 1998), cert. denied, 525
U.S. 1184 (1999). The court concluded that, based on the "language
in the statute, the policy underlying such language, and the
legislative history of the safety valve," defendants must disclose
information by the time of the commencement of the sentencing
hearing. Id. at 1092. We agree with the Seventh Circuit's
practical approach and conclude that the district court erred as a
matter of law by reducing Brenes' total offense level for
information he revealed to Agent Rodriguez during the sentencing
hearing.1 We therefore vacate the district court's sentence and
remand for re-sentencing with instructions that Brenes' total
offense level not be reduced for acceptance of responsibility or
for qualification under the safety valve provision.
VACATED and REMANDED
1Brenes' argues that the testimony of a police officer at trial
supports his entitlement to the benefits of the safety valve. A
defendant bears the burden of demonstrating that the safety valve
applies. See Miller, 179 F.3d at 964. The record indicates that,
at the commencement of the sentencing hearing, neither the
probation officer who prepared the PSR, Brenes' own lawyer, nor the
district judge believed that the officer's testimony would support
a reduction of Brenes' total offense level. Given the fact that
Brenes did not accept responsibility and failed to cooperate after
trial, the officer's testimony alone does not support the district
court's reduction of his sentence.
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