Revised February 28, 2003

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _____________________

No. 01-51142 _____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

FREEMAN CHARLES OUTLAW, JR.

Defendant - Appellant _________________________________________________________________

Appeal from the United States District Court for the Western District of Texas _________________________________________________________________

January 27, 2003

Before KING, Chief Judge, and DEMOSS and CLEMENT, Circuit Judges.

KING, Chief Judge:

This case requires us to review the district court’s denial

of the Defendant’s motion to suppress evidence claimed to be the

“fruit” of an unreliable canine alert and improper detention and

the district court’s refusal to award the Defendant an additional

one-level reduction from his base offense level for acceptance of

responsibility. We affirm the denial of the Defendant’s pre-trial

motion but vacate the Defendant’s sentence and remand for

resentencing. I.

FACTS AND COURSE OF PROCEEDINGS

The facts here are largely undisputed. On April 21, 2000,

border patrol agents at the Sierra Blanca checkpoint (a secondary

inspection station) conducted a routine citizenship status check of

passengers aboard a commercial Greyhound bus. Defendant Freeman

Charles Outlaw was a passenger aboard this bus. While an agent

conducted the status check inside the bus, another agent used his

drug-detecting canine (“Gerri”) to sniff the luggage in the bin

beneath the bus. The dog alerted to a black, hard-shelled suitcase

bearing a claim tag with the name “O. Freeman.” After none of the

passengers came forward to claim the suitcase, the agents conducted

a physical inspection of the passengers’ tickets to determine the

suitcase’s owner. As a result of this inspection, Outlaw was

identified as having the ticket matching the claim stub for the

suitcase and was asked to step off the bus.

Outlaw identified the suitcase as his own and agreed to allow

agents to search the suitcase. After prying the lock open with a

pocket knife (because Outlaw did not have the combination to the

suitcase’s lock), the agents uncovered two, one-gallon plastic jars

containing what field tests later revealed to be phencyclidine

(“PCP”).

Outlaw was thereafter charged with possession with the intent

to distribute 100 grams or more of PCP and one kilogram or more of

2 a mixture or substance containing a detectable amount of PCP in

violation of

(a)(1). Outlaw moved to suppress the

controlled substances found in his suitcase, any other physical

evidence found in his suitcase and his post-arrest statements. On

March 15, 2001, after conducting a de novo review of the magistrate

judge’s report and recommendation, the district court denied

Outlaw’s motion to suppress.

Outlaw thereafter entered a conditional plea of guilty and was

sentenced by the trial court. At the sentencing hearing, the

district court declined to award Outlaw an additional one-level

reduction from his base offense level for acceptance of

responsibility under United States Sentencing Guidelines

(“U.S.S.G.”) § 3E1.1(b).

Outlaw appeals the district court’s pre-trial denial of his

motion to suppress and appeals the district court’s refusal to

award him an additional one-level reduction under U.S.S.G.

§ 3E1.1(b).

II.

ANALYSIS OF OUTLAW’S MOTION TO SUPPRESS

We have stated the general principle that immigration

inspection detentions at a fixed checkpoint such as Sierra Blanca

should be extended “based [only] upon sufficient individualized

suspicion.” United States v. Machuca-Barrera,

(5th Cir. 2001). Outlaw attempts to use this general principle to

3 bolster his opposition to the district court’s pre-trial order

denying his motion to suppress. Specifically, he argues the denial

of his motion to suppress was erroneous because the canine alert

here was unreliable and the border agent was unreasonable in

relying on it.

The “‘standard of review for a motion to suppress based on

live testimony at a suppression hearing is to accept the trial

court’s factual findings unless clearly erroneous or influenced by

an incorrect view of the law.’” United States v. Williams,

(5th Cir. 1995) (quoting United States v. Alvarez,

(5th Cir. 1993)). The district court’s conclusions of

law, including whether there was reasonable suspicion to extend the

detention, however, are reviewed de novo. United States v.

Valadez,

(5th Cir. 2001); United States v.

Jacquinot,

(5th Cir. 2001).

After a thorough review of the testimony and evidence before

it, the district court found the canine alert to be reliable and

concluded that “the officer had a reasonable suspicion that the

suitcase contained some type of contraband” such that an inspection

of the passengers’ tickets in order to identify the owner of the

suitcase was proper. We find no clear error in the district

court’s factual finding that the canine alert was reliable and

therefore uphold the district court’s ultimate conclusion regarding

the reasonable suspicion of the border agent.

4 It is undisputed that this drug-detecting team successfully

completed all standard training procedures for border patrol drug-

detecting teams and that this canine was certified to detect a

variety of narcotics, including marijuana and its derivatives,

cocaine and its derivatives, heroin and its derivatives and

methamphetamine.1 That the suitcase the canine alerted to later

turned out to contain PCP, a drug the dog was not trained to

detect, simply does not vitiate the agent’s reasonable suspicion

under these facts. See, e.g., United States v. McCranie,

(10th Cir. 1983) (holding that an alert by an

explosives-sniffing dog not formally trained to detect drugs

nonetheless created reasonable suspicion that the defendant’s

suitcase contained contraband); United States v. Robinson,

(4th Cir. 1983) (“His [the dog’s] initial detection [] was

sufficient to establish probable cause for a search for controlled

substances – the fact that a different controlled substance was

actually discovered does not vitiate the legality of the search.”);

United States v. Viera,

(5th Cir. Unit B May

1981) (“It is true that the dogs were not trained to react to

quaaludes, and that the discovery of the quaaludes can in this

1 At the evidentiary hearing on Outlaw’s motion to suppress, Agent Joe Navarro, Gerri’s handler, described the training procedures that he and Gerri completed. Gerri completed approximately four weeks of training at the United States Border Patrol National Canine Facility in El Paso, Texas. Gerri was then paired with Navarro for an additional two-week team training procedure. On March 15, 2000, the team successfully passed a certification test before being placed in the field.

5 respect be characterized as fortuitous. However, that conclusion

is not grounds for suppression of the evidence.”); United States v.

Johnson,

(2d Cir. 1981) (rejecting appellant’s

argument that probable cause is not established when a dog alerts

on only the residual odors of a drug). On this record, we affirm

the district court’s order insofar as it holds that sufficient

reasonable and individualized suspicion existed to support the

inspection of the bus passengers’ tickets and to thereafter

question Outlaw, whose claim ticket matched that of the suitcase

believed to contain contraband.2

III.

ANALYSIS OF OUTLAW’S SENTENCE

2 While Outlaw urges us to also affirm the district court’s order insofar as it holds that a defendant has a general right in this circuit to challenge the training and reliability of a canine inspection team, we decline to do so here. The question before us is not whether a dog sniff can establish probable cause in a warrantless search without showing evidence of a dog’s training and reliability. Rather, the question presented to this court on appeal is whether, on this record, the district court erred in concluding that the dog’s handler had a reasonable suspicion to extend the detention. After permitting Outlaw to proffer evidence challenging the adequacy of the training received by this canine inspection team, the reliability of this canine, and the general record-keeping procedures of the Border Patrol regarding canine “false alerts,” the district court found this canine alert to be reliable and thus ultimately concluded that the agent handler was reasonable in basing his suspicion on the alert. As stated, our review on appeal is thus limited to whether the district court erred in making these findings.

6 Outlaw maintains the district court misapplied the “acceptance

of responsibility” guideline by declining to award him an

additional one-level reduction under U.S.S.G. § 3E1.1(b). “Because

trial courts are in a unique position to evaluate whether the

defendant has demonstrated acceptance of responsibility, a district

court’s finding on acceptance of responsibility is examined for

clear error but under a standard of review even more deferential

than a pure ‘clearly erroneous’ standard.” United States v. Cano-

Guel,

(5th Cir. 1999) (internal citation and

quotation omitted); see also United States v. Leal-Mendoza,

(5th Cir. 2002). However, if this court determines

that the district court misapplied the guidelines, remand is

appropriate unless this court concludes, on the record as a whole,

that the error is harmless. United States v. Cade,

(5th Cir. 2002) (“The error is harmless only if the party

defending the sentence persuades us that the district court would

have imposed the same sentence absent the erroneous factor.”).

At sentencing, the district court awarded Outlaw a two-level

reduction from his base offense level for acceptance of

responsibility under U.S.S.G. § 3E1.1(a) (“subsection (a)”), which

provides that “[i]f the defendant clearly demonstrates acceptance

of responsibility for his offense, decrease the offense level by 2

levels.” U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(a) (2001). Over

Outlaw’s objection, however, the district court declined to award

Outlaw an additional one-level reduction under U.S.S.G. § 3E1.1(b)

7 (“subsection (b)”) of the same guideline section, which instructs

the court to reduce the offense level by a third point if certain

conditions are met. Specifically, the guideline states:

(b) If the defendant qualified 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:

(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.

U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(b) (2001).

Many courts, including ours, have discussed the interplay

between subsection (a) and subsection (b). Because it is important

to the issues in this case, we summarize a few underlying

principles set forth in the jurisprudence discussing these

subsections before moving to the facts here. First, a district

court lacks discretion to deny the additional one-level reduction

under subsection (b) if the defendant is found to have accepted

responsibility under subsection (a), the offense level prior to

this two-level reduction is sixteen or greater, and the defendant

8 has complied with the conditions specified in either subsection

(b)(1) or subsection (b)(2). See United States v. Williams,

(5th Cir. 1996) (“If the defendant satisfied all

three prongs of the test, the district court is ‘without any

sentencing discretion’ to deny the additional one-level decrease.”)

(quoting United States v. Mills,

(5th Cir.

1993)); United States v. Tello,

(5th Cir. 1993)

(discussing subsection (b) of § 3E1.1, added in 1992, and stating

that “[t]hat imperative clause directs the sentencing court” to

decrease if either subsection (b)(1) or subsection (b)(2) are met)

(emphasis in original).

Second, although subsection (b) is part of the “acceptance of

responsibility” guideline, the measure of a defendant’s acceptance

of guilt or contrition is generally irrelevant to the subsection

(b) inquiry. Rather, while the key inquiry for purposes of

subsection (a) is whether the defendant has truly demonstrated

contrition, once the district court finds the defendant evinces

adequate acceptance of his guilt, the inquiry under subsection (b)

focuses instead on the functional issues of timeliness and

efficiency, with timeliness being “at the very heart of the third

element, assisting authorities.” Tello,

; see also

United States v. De Leon Ruiz,

(1st Cir. 1995)

(discussing the two-fold nature of the reductions under subsections

(a) and (b)); cf. Williams,

(stating that subsection

(b) “defines timely acceptance in functional, not exclusively

9 temporal terms”). Comment 6 to the guideline elaborates on the

importance of timeliness (not contrition or acceptance of guilt) to

the subsection (b) inquiry. It states that “[t]he timeliness of

the defendant’s acceptance of responsibility is a consideration

under both subsections, and is context specific. In general, the

conduct qualifying for a decrease in offense level under subsection

(b)(1) or (2) will occur particularly early in the case.” U.S.

SENTENCING GUIDELINES § 3E1.1(b), cmt. 6 (2001) (emphasis added).

Third, the guideline provides an alternative test under

subsection (b) to control whether a defendant is entitled to an

additional one-point reduction. A defendant awarded the two-level

reduction (whose base offense level before this award is sixteen or

greater) must be awarded an additional one-level reduction if he

either timely provides complete information to the government

concerning his own involvement in the offense, or he timely

notifies the authorities of his intention to enter a plea of

guilty, thereby permitting the government to avoid preparing for

trial and the court to allocate its resources efficiently. This

dual inquiry under subsection (b) has created two separate classes

of cases – one class interpreting subsection (b)(1) and one class

interpreting subsection (b)(2). Those interpreting subsection

(b)(1) focus on the timeliness and completion of the information

(regarding the defendant’s own conduct) that the defendant provides

the authorities. See, e.g., United States v. Brack,

(7th Cir. 1999) (discussing the focus of the inquiry under

10 (b)(1) as that of completeness and timing and upholding the factual

finding of the district court that the defendant’s cooperation

“came too late to qualify for an additional acceptance of

responsibility reduction”); United States v. Lancaster,

(4th Cir. 1997) (“The key inquiry in determining whether

a defendant qualifies for a reduction under [subsection (b)(1)] is

whether the defendant provides information in sufficient time to

aid the Government in the investigation or prosecution of the

case.”); United States v. Eyler,

(9th Cir. 1995)

(rejecting the argument that the defendant was not entitled to a

reduction under this subsection because the information he provided

to the authorities was readily available to the police). Those

interpreting subsection (b)(2) instead focus on whether the

defendant notifies the government of his plan to plead guilty such

that the government is saved the time and expense of preparing for

trial and the court is given sufficient time to reschedule its

calendar. See, e.g., United States v. Chee,

(9th Cir. 1997) (“Only early and consistent cooperation which saves

the government from the rigors of trial preparation and jury

selection merits the assistance reduction.”); United States v.

Thompson,

(8th Cir. 1995) (finding no clear error

in the denial of a subsection (b)(2) reduction where the defendant

did not timely notify the government of his intent to plead guilty

and the government “had essentially already completed its

preparations for trial”); United States v. Kimple,

,

11 1413 (9th Cir. 1994) (“[A] defendant who pleads guilty on the eve

of trial is not entitled to the reduction for timely acceptance of

responsibility under [subsection (b)(2)].”); United States v.

Hopper,

(9th Cir. 1994) (“[I]f either the

prosecution is substantially prepared to present its case or the

court has not been given sufficient time to reschedule its

calendar, then the defendant is not entitled to an additional one-

level reduction under [subsection (b)(2)].”).

As an overlay to these general principles, the commentary to

this guideline explains that a defendant’s entitlement to a one-

level reduction is “context specific.” See U.S. SENTENCING GUIDELINES

§ 3E1.1, cmt. 6 (2001). Moreover, because “[t]he sentencing judge

is in a unique position to evaluate a defendant’s acceptance of

responsibility,” his “determination . . . is entitled to great

deference on review.” Id. at cmt. 5. This overlay (in addition to

the general principles stated above) is important as we turn to the

specifics of this case.

The government contends that the certain cases in this circuit

interpreting the “acceptance of responsibility” guideline are in

tension. Specifically, the government argues that for our opinion

in United States v. Leal-Mendoza,

(5th Cir. 2002), to

support Outlaw’s contention that he is entitled to a one-level

reduction, our opinion in United States v. Gonzales,

(5th Cir. 1994), must be limited. We disagree.

12 In Leal-Mendoza, the district court declined to apply the

additional one-level reduction under subsection (b) for acceptance

of responsibility even though it determined that the defendant

qualified for the two-level reduction for acceptance of

responsibility under subsection (a). Leal-Mendoza,

. The district court based its decision on the defendant’s

pursuit of a motion to suppress evidence, stating that “[t]he facts

here, to me, don’t justify even a 2-point reduction. But the

policy of the court is to give it[,] [so] I’m going to give them

the 2-point reduction.”

.

We found that the district court misapplied the guidelines,

and emphatically “reject[ed] the proposition that a sentencing

judge’s reluctance in awarding the two-point reduction for

acceptance of responsibility under U.S.S.G. § 3E1.1(a) can have any

bearing on the independent inquiry of whether to award another

level reduction under U.S.S.G. § 3E1.1(b).” Id. We further held

that “[w]hether a defendant qualifies for the two-level reduction

in subsection (a) is an all or nothing proposition: once the

district court decides that a defendant is entitled to the

subsection (a) reduction, the only inquiries remaining under

subsection (b) are the last two prongs of the test.” Id. at 476.

This holding simply restated the general principle set forth

by our court in United States v. Tello,

(5th Cir.

1993). There, despite a finding under U.S.S.G. § 3C1.1 that the

defendant obstructed justice by lying to the probation officer, the

13 district court awarded the defendant a two-level decrease for

acceptance of responsibility under subsection (a). However, it

thereafter declined to award the defendant an additional one-level

reduction under subsection (b). Id. at 1121. In so doing, it

expressly found that the defendant’s obstruction of justice caused

the investigating officer to expend more time and effort on the

case than he otherwise might have and the defendant was thus not

entitled to an additional one-level reduction. Id. at 1122. We

vacated the sentence as to this reduction and held that:

[T]he district court erred in the reason given for denying the extra 1-level reduction of subsection (b) – 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 [the defendant] 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 thereof, obstruction became irrelevant. It evaporated from the sentencing calculus.

Id. at 1128 (emphasis in original).

The factual and procedural context for our holdings in both

Leal-Mendoza and Tello required us to vacate the defendants’

sentences based on the district court’s misapplication of the

“acceptance of responsibility” guideline. Our decision in each

case turned on the general principle that once a defendant “clearly

demonstrates acceptance of responsibility” under subsection (a),

the analysis under subsection (b) is explicitly limited to the

14 questions under subsection (b)(1) and (b)(2). Tello,

. In contrast, the district court in Gonzales correctly

applied the guideline and made the appropriate inquiry under

subsection (b)(2).3 On appeal, we found evidence in the record to

support the district court’s factual finding that the hearing on

the defendant’s motion to suppress (which was conducted at the

beginning of a full bench trial) was the equivalent of a full trial

and required the government to prepare fully for a trial on the

merits and the court to allocate its resources as though a full

trial on the merits was conducted.

. Thus, based on

that specific factual context, with great deference to the district

court’s factual findings made in response to the appropriate

inquiry under subsection (b)(2), we affirmed the sentence.

We simply do not see friction between these cases, nor do we

see that Gonzales automatically precludes Outlaw from qualifying

for the additional one-level reduction under subsection (b)(2), as

argued by the government. The inquiry under this guideline is

“context specific,” and, because of the “unique position” of the

sentencing judge, he is entitled to “great deference.” U.S.

SENTENCING GUIDELINES § 3E.1.1, cmt. 5, 6 (2001).

Here, both parties agree that the district court based its

decision not to award Outlaw an additional one-level reduction

solely on Outlaw’s decision to file and pursue the motion to

3 As stated in footnote one, subsection (b)(1) was not at issue in the case. Gonzales,

n.1.

15 suppress discussed above. However, the transcript of the

sentencing hearing offers us little insight into the district

court’s reasoning for doing so, and both parties agree that the

case should be remanded to the district court for further

explanation. As did the district court in Leal-Mendoza, the

district court may have improperly determined that by filing and

pursuing a motion to suppress evidence, Outlaw had only reluctantly

accepted responsibility and should thus not get the full benefit of

a three-point reduction. However, the district court may instead

have found that Outlaw strategically waited in providing assistance

to the authorities or in notifying the authorities of his intent to

plead guilty and, in so doing, required the government to, in

essence, fully prepare for trial. Because, as the parties

acknowledge, we cannot tell on the record before us whether the

district court considered the relevant questions under subsection

(b)(1) and (b)(2) in declining to reduce Outlaw’s base offense

level an additional point, remand is appropriate unless the

government persuades us that “the district court would have imposed

the same sentence” anyway. Cade,

.

Here, in addition to the two-point reduction for acceptance of

responsibility, the district court further reduced Outlaw’s offense

level two points for his minor role in the offense. With a

Criminal History Category of III and a resulting offense level of

thirty, the guideline range for imprisonment was 121-151 months.

Outlaw was sentenced at the low end of this range, 121 months. The

16 government concedes that it cannot demonstrate that the error, if

any, is harmless because reducing Outlaw’s base offense level to

twenty-nine (instead of thirty) results in a guideline range of

108-135 months (rather than 121-151 months), and the district court

might obviously choose to sentence Outlaw at the low end of this

range. Remand is thus appropriate for the district court to

determine whether Outlaw timely provided the authorities with

complete information regarding his own involvement in the case (the

proper inquiry under subsection (b)(1)) or whether the defendant

notified the government and the court of his intent to plead guilty

at an early enough time in the proceedings to preclude the

government from preparing for trial and to enable the court to

avoid unnecessarily expending judicial resources (the proper

inquiry under subsection (b)(2)).

IV.

CONCLUSION

We AFFIRM the denial of Outlaw’s motion to suppress and

accordingly AFFIRM Outlaw’s conviction. We VACATE Outlaw’s

sentence and REMAND for resentencing consistent with this opinion.

17