United States v. Lopez-Torres

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-50329 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus LEONEL LOPEZ-TORRES Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas (A-94-CR-143-4)

May 17, 1996 Before POLITZ, Chief Judge, KING and DENNIS, Circuit Judges.

PER CURIAM:* Leonel Lopez-Torres appeals the sentence imposed for his guilty plea conviction of possession with intent to distribute marihuana, 21 U.S.C. § 841(a)(1). Concluding that Lopez-Torres was entitled to an additional one- level reduction under U.S.S.G. § 3E1.1(b)(2) for acceptance of responsibility, we vacate in part, affirm in part, and remand for resentencing.

Background The guilty plea was entered pursuant to a plea agreement. Lopez-Torres sought and received a two-point offense level reduction for acceptance of responsibility under Section 3E1.1(a). The district court, however, declined to reduce the offense level an extra point under Section 3E1.1(b). The Sentencing Guidelines computation by the court was an offense level of 30 and a criminal history category of II, which resulted in a sentencing range of 108-135 months. Lopez-Torres was sentenced to 135 months imprisonment, years supervised release, a $15,000 fine, and a $50 special assessment. He timely appealed.

Analysis The standard governing entitlement to the additional one-level reduction under Section 3E1.1(b) is well-established in this circuit: 1 Section 3E1.1(b), U.S.S.G., sets forth a three-part test to determine whether a defendant is entitled to the additional one-level reduction.

United States v. Mills, 9 F.3d 1132, 1136 (5th Cir. 1993). The sentencing court is directed to grant the additional decrease if: (1) the defendant qualifies for the basic two-level decrease for acceptance of responsibility under § 3E1.1(a); (2) the defendant’s offense level is sixteen or higher before the two-level reduction under § 3E1.1(a); and, (3) the defendant timely ‘assisted authorities’ by either: (a) providing complete information to the government concerning his own involvement in the offense; or (b) 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. United States v. Tello, 9 F.3d 1119, 1124-25 (5th Cir. 1993) (emphasis added). If the defendant satisfies all three prongs of the test, the district court is ‘without any sentencing discretion’ to deny the additional one-level decrease. Mills, 9 F.3d at 1138-39.2 Lopez-Torres’ computation reached a base offense level of 32 and he was given the basic two-level reduction under Section 3E1.1(a). He thus satisfied the first two elements of the tripartite test. As to the third element, the district court, while making no explicit finding,3 noted that his guilty plea effectively spared the government any significant trial preparation.4 Our review of the record leads us inexorably to this conclusion and to the further conclusion that the district court was obliged to grant Lopez-Torres the requested additional one-point reduction.

We vacate the sentence as it relates to the term of imprisonment and that portion of the sentence denying the one-point reduction for acceptance of responsibility under Section 3E1.1(b)(2). Upon remand, resentencing is to be based on an offense level of 29 and a criminal history category of II. In all other respects the sentence imposed by the district court is affirmed.

VACATED in part, AFFIRMED in part, and REMANDED for resentencing in accordance herewith.