United States v. Richard J. Donovan, 996 F.2d 1343, 1st Cir. (1993)
United States v. Richard J. Donovan, 996 F.2d 1343, 1st Cir. (1993)
United States v. Richard J. Donovan, 996 F.2d 1343, 1st Cir. (1993)
2d 1343
James S. Dilday and Grayer & Dilday, Boston, MA on brief for defendant,
appellant.
A. John Pappalardo, U.S. Atty., and Stephen A. Higginson, Asst. U.S.
Atty., Boston, MA, on brief for appellee.
Before BREYER, Chief Judge, SELYA and BOUDIN, Circuit Judges.
PER CURIAM.
After negotiating a plea agreement with the government, defendant pled guilty
in September 1992 to five offenses: bank robbery, see 18 U.S.C. 2113(a),
conspiracy to commit bank robbery, see id. 371, carrying a firearm during a
crime of violence, see id. 924(c), and two counts of being a felon in
possession of a firearm, see 18 U.S.C. 922(g).1 On November 4, 1992, he was
10
In addition, the PSR notes that defendant "denied the known information" that
there was a "switch car waiting ... some distance from the bank location." This
fact alone would have sufficed to render subsection (b)(1) inapplicable. Indeed,
it might even have justified a denial of the two-level reduction under subsection
(a). See, e.g., U.S.S.G. 3E1.1, comment. (n. 1(a)) ("a defendant who falsely
denies ... relevant conduct that the court determines to be true has acted in a
manner inconsistent with acceptance of responsibility"); United States v. Olea,
987 F.2d 874, 878 (1st Cir.1993) (while defendant need not accept
responsibility for dismissed charges, the giving of materially false information
with respect thereto justified denial of 3E1.1 reduction); see also United
States v. Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir.1993) ( 3E1.1 reduction may be
denied where "a defendant resorts to evasions, distortions, or half-truths in an
effort to minimize his culpability, whether during a presentence interview or in
his allocution").3
11
In order to qualify under subsection (b)(2), "the defendant must have notified
authorities of his intention to enter a plea of guilty at a sufficiently early point
in the process so that the government may avoid preparing for trial and the
court may schedule its calendar efficiently." U.S.S.G. 3E1.1, comment. (n. 6).
It is undisputed that no such benefits were realized here. The case was on the
verge of trial on two occasions (requiring governmental preparation in each
instance), and the plea agreement was reached only on the eve of the second
trial date. The parties have offered varying explanations for this delay--a
dispute which the district court failed to resolve.4 Yet resolution thereof was
unnecessary, as subsection (b)(2) could properly have been found not to apply
even under defendant's version of events.
12
The court below suggested that subsection (b)(2) would apply only where a
defendant expresses a readiness to plead guilty without condition, forgoing any
attempt to bargain with the government. Defendant contends that such a view is
overly restrictive, and that a defendant should not be required to relinquish his
right to negotiate the most favorable possible "deal" in order to qualify for a
subsection (b)(2) reduction. This argument is not without considerable force.
Where such negotiations result in a guilty plea well in advance of any trial date,
such that the government is spared the task of preparing for trial, the purposes
of this provision would appear fully satisfied.5 Yet we need not decide this
issue here, inasmuch as the circumstances at hand are quite different. As
mentioned, the parties reached a plea agreement on the eve of the second trial
date, after the government had fully prepared for trial.6 And whatever the
reasons for the delay in reaching that agreement, there is no suggestion that the
government unreasonably prolonged the negotiations in order to deprive
defendant of the additional reduction. Defendant contends only that the
government initially adopted a hard-line stance in order to induce him to
cooperate against his codefendant. Even if true, this allegation carries no
connotation of bad faith on the part of the government.
13
14
Affirmed.
One of the "felon in possession" offenses occurred in June 1991. The other four
charges arose from defendant's participation, along with his codefendant, in an
armed robbery of a bank in Peabody, Massachusetts in March 1992
The district court selected the lower end of the applicable sentencing range; no
departure therefrom was undertaken. Appellate jurisdiction (which the
government does not contest) therefore exists under 18 U.S.C. 3742(a)(2)
Although the government argues the point, we need not decide whether, or to
what extent, a defendant who pleads guilty to a conspiracy charge might be
required to disclose the involvement of his coconspirator(s) in order to satisfy
subsection (b)(1)
In United States v. Perez-Franco, 873 F.2d 455 (1st Cir.1989), we held that a
defendant need only accept responsibility for the counts to which he is pleading
guilty in order to receive a 3E1.1 reduction. Defendant seeks to invoke this
rule by suggesting that any disclosure as to the "switch car" would have
involved an uncharged offense of automobile theft. Yet defendant is reported to
have denied, not that the switch vehicle was stolen, but that it existed at all.
Moreover, use of a second car was not unrelated to the offenses to which he
pled guilty; it was alleged as an overt act in the conspiracy count of the
indictment. In any event, the PSR states that defendant "admitted to having a
stolen car." And the PSR's description of the bank robbery (which the district
court adopted without objection from defendant) notes that both vehicles used
in connection therewith had been stolen. Defendant's reliance on Perez-Franco
is therefore misplaced
Contrary to defendant's related contention, we also note that it was the
government (not the court) which remarked at sentencing upon his refusal to
reveal the origin of the firearm. The court confined its attention to the extent to
which defendant described his own involvement in the charged offenses.
4
Defendant alleges that his offer to plead guilty was on the table at all times; that
the government refused to offer any concessions in an attempt to induce
defendant to provide information against his codefendant; and that only when
the codefendant agreed to plead guilty did the government acquiesce in the
terms proposed by defendant. The government, by contrast, contends that
defendant was holding out for additional concessions and modified his stance
only at the last minute
Whatever confusion exists in this regard derives from the fact that subsection
(b)(2) refers to the time when a defendant announces his "intention" to enter a
guilty plea, not to the time when the actual plea occurs. The announcement of
an intention to plead--let alone a less formal expression of tentative interest in
doing so--is hardly an immutable event. In countless cases, of course,
defendants indicate a willingness at least to consider the possibility of a plea,
and then pursue the matter to a conclusion, or not, depending on the
government's response. To determine how subsection (b)(2) operates in this
fluid context, one must rely on its underlying purpose of promoting
"prosecutorial and judicial economy." United States v. Rios-Paz, 808 F.Supp.
206, 209 (E.D.N.Y.1992)