FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 08-10398 Plaintiff-Appellee,

D.C. No.

v.  1:07-CR-00074-1

VINCE P. GARRIDO,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Guam

Frances M. Tydingco-Gatewood

Chief District Court Judge, Presiding

Submitted February 10, 2010*

Honolulu, Hawaii

Filed February 25, 2010

Before: Jerome Farris, Dorothy W. Nelson and

Carlos T. Bea, Circuit Judges.

Opinion by Judge D.W. Nelson

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

3059
COUNSEL

Myra D. Mossman, Santa Barbara, California, for the

defendant-appellant.

Rosetta L. San Nicolas, Hagatna, Guam, Assistant United

States Attorney, for the plaintiff-appellee.

OPINION

D.W. NELSON, Senior Circuit Judge:

Vince P. Garrido appeals his conviction for Hobbs Act

Robbery in violation of 18 U.S.C. § 1951(a) and using and

carrying a firearm during a crime of violence in violation of

18 U.S.C. § 924(c). Garrido contends that the district court

erred when it admitted lay witness testimony that Garrido carried a gun during the robbery, and when it denied his motion

for judgment of acquittal pursuant to Federal Rule of Criminal

Procedure 29 based on the sufficiency of evidence. Garrido

also appeals the district court’s conclusion that he was ineligible for a reduction of sentence for acceptance of responsibility

because he did not plead guilty to all charges. Although we

affirm the judgment of conviction, we hold that the district

court erred when it concluded that it had no legal authority to

3062 UNITED STATES v. GARRIDO
consider a reduction for acceptance of responsibility after

Garrido failed to plead guilty and contested the charge that he

used and carried a firearm in violation of 18 U.S.C. § 924(c).

Therefore, we vacate the district court’s sentence and remand

for resentencing.

I

Just after 2:00 a.m. on the morning of March 22, 2007,

Vince P. Garrido robbed the House of Liberty game room in

Dededo, Guam. Security Guard Philip Sablan, a childhood

friend, recognized Garrido as he got out of a car, pulled a ski

mask over his face and pointed a gun at Sablan. The driver

also got out of the car and pointed a gun at Sablan. Both Garrido and the driver threatened to kill Sablan. The assailants

proceeded to enter the game room, threaten its occupants, and

order everyone to lie on the floor. The driver handcuffed

Sablan, and Garrido pointed his gun at Joshua Ninete, the

cashier. They took money from the cashier’s booth and then

walked out of the game room. Sablan, Ninete, and four customers were present. The customers left before the police

arrived.

Garrido was arrested at a hotel twenty hours after the robbery. He admitted that he committed the robbery and refused

to name the driver that accompanied him during the robbery.

Garrido was indicted for one count of Hobbs Act Robbery in

violation of 18 U.S.C. § 1951(a) and one count of using and

carrying a firearm during a crime of violence in violation of

18 U.S.C. § 924(c)(1)(A)(ii). 

At trial, Sablan testified that when Garrido first approached

him, Garrido held a gun within one to two feet of Sablan’s

face. Sablan testified that Garrido’s gun looked like a nine

millimeter gun, the same type of gun that Sablan once owned.

Sablan also testified that while Garrido pointed his gun at the

cashier, the driver pressed a gun against Sablan’s neck, and he

was able to feel the cold metal behind his right ear. Sablan

UNITED STATES v. GARRIDO 3063
testified that both guns were real. Ninete testified that both

Garrido and the driver carried a gun. The gun came within

one foot of his face, and he testified that the gun looked real.

The robbery was captured on videotape and the video was

admitted into evidence. Defense counsel filed timely motions

for judgment of acquittal pursuant to Federal Rule of Criminal

Procedure 29. On November 20, 2007, after a four-day trial,

the jury found Garrido guilty of both counts. 

At sentencing, Garrido requested a reduction for acceptance

of responsibility. During the sentencing hearing, the district

court noted that, though Garrido made an effort to plea to the

robbery count, he did not enter a guilty plea on the firearm

count and, thus, he did not truthfully admit the conduct comprising all of the offenses. The district court stated, “after

reading [United States v. Ginn, 87 F.3d 367 (9th Cir. 1996)]

and the Guidelines Manual, it appears to me that the defendant has to have affirmatively entered a guilty plea.” After

stating that there was no case law indicating otherwise, the

district court concluded “that the acceptance of responsibility

reduction is not allowed.” The district court sentenced Garrido to 130 months in prison.

Garrido brought this appeal. We have jurisdiction pursuant

to 28 U.S.C. § 1291.

II.

[1] We reject Garrido’s argument that the district court

erred under Federal Rules of Evidence 701 and 702 by allowing lay witnesses to testify that Garrido used a gun during the

robbery. “The District Court’s construction or interpretation

of either a statute or the Federal Rules of Evidence, including

whether particular evidence falls within the scope of a given

rule, is subject to de novo review.” United States v. Durham,

464 F.3d 976, 981 (9th Cir. 2006). “Once it has been determined that challenged evidence falls within the scope of a

3064 UNITED STATES v. GARRIDO
given rule, the District Court’s decision to admit the evidence

is reviewed for abuse of discretion.” Id. 

[2] Security guard Philip Sablan and the cashier Joshua

Ninete testified as to their observations of Garrido’s gun. The

testimony was “predicated upon concrete facts within their

own observation and recollection.” Durham, 464 F.3d at 982

(quoting United States v. Skeet, 665 F.2d 983, 985 (9th Cir.

1982)). They did not have to be experts or have training in

weapons identification to testify about what they saw. The

district court did not err by permitting these lay witnesses to

testify that Garrido carried a gun. See United States v. Liles,

432 F.2d 18, 19-20 (9th Cir. 1970).

III.

[3] We also reject Garrido’s claim that there was insufficient evidence to sustain the conviction under 18 U.S.C.

§ 924(c). We review sufficiency of evidence claims de novo.

United States v. Duran, 189 F.3d 1071, 1078 (9th Cir. 1999).

We “review this claim to determine whether any ‘rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt.’ ” United States v. Westerdahl,

945 F.2d 1083, 1088 (9th Cir. 1991) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “Possession of a toy or replica gun cannot sustain a conviction under § 924(c).” Id. 

[4] The evidence at trial supports the jury’s conclusion that

Garrido had a gun during the robbery. The robbery was captured by video surveillance showing masked men holding

guns. This two-minute video was entered into evidence. Two

eyewitnesses testified that Garrido had a gun. One of those

witnesses, security guard Philip Sablan, came within one to

two feet of the gun. He was able to describe the gun and testified that he once owned a gun similar to the weapon Garrido

was holding. This evidence, viewed in the light most favorable to the government, is sufficient for a rational juror to

conclude that Garrido used a firearm in furtherance of a crime

UNITED STATES v. GARRIDO 3065
of violence in violation of 18 U.S.C. § 924(c). See Westerdahl, 945 F.2d at 1088.

IV.

“We review de novo whether the district court misapprehended the law with respect to the acceptance of responsibility reduction.” United States v. Cortes, 299 F.3d 1030, 1037

(9th Cir. 2002). Whether or not the defendant has accepted

responsibility for his crime is a factual finding that we review

for clear error. United States v. McKinney, 15 F.3d 849, 852

n.6 (9th Cir. 1994). 

[5] Garrido asserts that the district court erred when it did

not grant him a two-level reduction for acceptance of responsibility. The United States Sentencing Guidelines provide for

a two-point reduction in a defendant’s offense level where a

defendant clearly demonstrates acceptance of responsibility

for his offense. U.S.S.G. § 3E1.1(a) (2007). To determine

whether a defendant qualifies for a reduction, the district court

may consider whether the defendant “truthfully admitt[ed] the

conduct comprising the offense(s) of conviction, and truthfully admitt[ed] or not falsely den[ied] any additional relevant

conduct for which the defendant is accountable . . .” U.S.S.G.

§ 3E1.1, cmt. n.1(a) (2007). This is a factual determination

within the district court’s discretion that “is entitled to great

deference on review.” U.S.S.G. § 3E1.1, cmt. n.5 (2007).

[6] Garrido did not have to plead guilty to be eligible for

a reduction for acceptance of responsibility. See United States

v. Cortes, 299 F.3d 1030, 1038 (9th Cir. 2002) (“Although a

guilty plea is undoubtedly significant evidence of an acceptance of responsibility, if [the defendant] otherwise demonstrated sincere contrition, he remains eligible for the

reduction.”); McKinney, 15 F.3d at 854 (stating that the defendant was eligible for a reduction even though he pled not

guilty to a conspiracy charge because he accepted responsibility for his own conduct). The Sentencing Guidelines state that

3066 UNITED STATES v. GARRIDO
the reduction is not intended for a defendant who does not

admit guilt or express remorse until after putting the government to its burden of proof at trial. U.S.S.G. § 3E1.1, cmt. n.2

(2007). The Guidelines also state, however, that “[c]onviction

by trial . . . does not automatically preclude a defendant from

consideration for such a reduction” where, for example, the

defendant goes to trial to challenge the constitutionality of a

statute or the application of a statute to her or his conduct. Id.

We have recognized that this example is not exhaustive. McKinney, 15 F.3d at 853 (“Although the application notes list

only this single example of a case where a defendant can

receive the reduction despite going to trial, the quoted passage

itself makes clear that the example was not intended to be

exhaustive.”). If Garrido manifested the appropriate contrition, the reduction is available. Id. (“[I]n appropriate circumstances the reduction is . . . available in cases in which the

defendant manifests genuine contrition for his acts but nonetheless contests his factual guilt at trial.”).

[7] In this case, Garrido confessed to committing the robbery, and tried to plead guilty to that charge. The district court

may take that into consideration. It can also consider that Garrido did not plead guilty and put the government to its burden

of proof at trial on both counts of conviction. Cortes, 299 F.3d

at 1038. It appears that the district court did not reach the factual determination, and concluded instead that the fact that

Garrido had not pled guilty to all charges was dispositive. We

now turn to whether Garrido was ineligible for a reduction for

acceptance of responsibility because he challenged the factual

elements of the second charge, using and carrying a firearm

during a crime of violence in violation of 18 U.S.C. § 924(c).

V.

The Sentencing Guidelines instruct courts to first identify

groups of closely related counts and then determine the

offense level applicable to each group. U.S.S.G. § 3D1.1(a)

(2007). Then, those groups are themselves grouped to deterUNITED STATES v. GARRIDO 3067
mine a combined offense level (§§ 3D1.1(a)(3), 3D1.4) that

will be used to determine the sentence applicable to each

count (§ 3D1.5). However, where a statute specifies a term of

imprisonment to be imposed, and that term is to run consecutively to any other term, that count is not to be grouped with

other counts. U.S.S.G. § 3D1.1(b)(1) (2007). Counts that are

grouped are treated as a single offense for the purposes of the

guidelines. U.S.S.G. § 3D, introductory cmt. (2007).

18 U.S.C. § 924(c) is specifically identified as a charge that

is not to be grouped. U.S.S.G. § 3D1.1, cmt. n.2 (2007). This

is because § 924(c) specifies a mandatory minimum sentence

of seven years’ imprisonment that is to run consecutively to

any other term of imprisonment. Thus, under the guidelines,

it is not considered the same offense of conviction as a robbery charge. Instead, in the instant case the § 924(c) conviction contributes zero points to the offense level and no

combined guidelines sentence is calculated. As a practical

matter, when a defendant accepts responsibility for § 924(c),

the defendant does not receive a reduction in his sentence for

that count.

[8] Citing United States v. Ginn, 87 F.3d 367 (9th Cir.

1996), the government contends that Garrido had to accept

responsibility for each count in the indictment to qualify for

a reduction in his sentence for acceptance of responsibility. In

Ginn, the defendant pled guilty to one robbery but contested

the charge of a second robbery, forcing the government to

meet its burden of proof at trial. Ginn, 87 F.3d at 368. The

defendant asserted that he was entitled to a reduction in his

sentence for acceptance of responsibility for one of the robberies. Id. at 370. We held that “a defendant is not entitled to

an adjustment when he does not accept responsibility for all

of the counts of which he is convicted.” Id. We reasoned that

“[b]ecause an adjustment for acceptance of responsibility is

made only after the combined offense level is computed, the

Sentencing Guidelines do not contemplate calculating acceptance of responsibility for each offense.” Id. at 371 (citations

3068 UNITED STATES v. GARRIDO
and quotations omitted) (emphasis added). In Ginn, the robberies could be grouped, and only after the combined offense

level was calculated could the court consider an adjustment

for acceptance of responsibility. Id. We concluded that permitting Ginn to “receive a benefit on his offense level for both

robberies even though he accepted responsibility for only one

robbery” would be “contrary to the intent of the Sentencing

Guidelines.” Id. Unlike the defendant in Ginn, the defendant

here sought a reduction for the robbery charge, which could

not be grouped with the § 924(c) charge that he contested.

Therefore, no combined offense level was ever calculated,

and it was possible to calculate acceptance of responsibility

for each separate offense. 

[9] Our sister circuits have held that a district court retains

discretion to apply the acceptance of responsibility reduction

when the defendant seeks the reduction for one charge after

contesting the factual elements of a § 924(c) charge. See

United States v. Williams, 344 F.3d 365, 381 (3rd Cir. 2003)

(“[W]here the counts are not grouped and credit may be

granted to them separately, there is no error when the District

Court grants the reduction as to a count that the defendant did

not challenge.”); United States v. Hargrove, 478 F.3d 195,

200 (4th Cir. 2007) (“[U]nder the terms of U.S.S.G. § 3E1.1,

the defendant must only accept responsibility for the grouped

guidelines counts in order to be eligible for the reduction in

offense level for that particular ‘offense.’ ”); United States v.

Wattree, 431 F.3d 618, 622-23 (8th Cir. 2005) (“Where a

defendant pleads guilty to all counts that are grouped for sentencing, contesting guilt only on non-grouped offenses, the

guidelines do permit a two-level acceptance-of-responsibility

reduction, based on the totality of the circumstances.”). 

[10] We join our sister circuits in holding that, where a

defendant accepts responsibility for all counts that are

grouped under U.S.S.G. §§ 3D1.1-3D1.5, that defendant is

eligible for the § 3E1.1 reduction for those counts, even if the

defendant has not accepted responsibility for other counts

UNITED STATES v. GARRIDO 3069
which, under § 3D1.1(b), are excluded from grouping.

Although Garrido challenged the 18 U.S.C. § 924(c) charge,

such challenge does not disqualify him from the § 3E1.1 sentence reduction for the 18 U.S.C. § 1951 Hobbs Act Robbery

charge, because that charge was not “grouped” with the

§ 924(c) charge. See U.S.S.G. § 3D1.1(b). Thus, under the

guidelines, each sentence was calculated separately, and the

§ 3E1.1 reduction applies separately.

Here, the district court retained discretion to consider

whether Garrido qualified for a reduction. Garrido did not

have to plead guilty as long as he manifested the appropriate

contrition. Even if he did not accept responsibility for the

§ 924(c) charge, that did not automatically disqualify Garrido

for a reduction on the robbery charge, and the district court

had the legal authority to consider Garrido’s eligibility for a

reduction of sentence for acceptance of responsibility for the

robbery. 

[11] The district court implied that it could not consider

Garrido’s eligibility for a reduction because Garrido did not

plead guilty and because he contested the § 924(c) charge. It

indicated both that Garrido “did not truthfully admit the conduct comprising all of the offenses,” and, citing the Ginn case,

“that the defendant has to have affirmatively entered a guilty

plea.” To the extent that the district court believed that Garrido had to affirmatively enter a guilty plea on all of the

offenses to be eligible for a reduction, it committed legal

error. We therefore find it appropriate to vacate the district

court’s order and remand to the district court for resentencing.

Upon resentencing, the district court should take into account

the appropriate considerations pursuant to the sentencing

guidelines. U.S.S.G. § 3E1.1, cmt. n.1(a) (2007). We express

no view on the merits of Garrido’s motion. 

The government’s motion to strike portions of Garido’s

opening brief and any related filings is denied as moot.

3070 UNITED STATES v. GARRIDO
AFFIRMED in part; SENTENCE VACATED and

REMANDED.

UNITED STATES v. GARRIDO 3071