IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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94-50694

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONALD KEITH WILLIAMS,

Defendant-Appellant.

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__

Appeal from the United States District Court for the

Western District of Texas

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January 30, 1996

Before POLITZ, Chie f Judge, HILL* and DeMOSS,

Circuit Judges.

JAMES C. HILL, Circuit Judge:

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* Circuit Judge of the Eleventh Circuit, sitting by

designation.1 Williams was convicted in 1983, of delivery of

methamphetamine and delivery of mari juana. In 1987,

he was convicted of burglary.

2 A second issue raised by Williams, for the first time

on direct appeal, that his trial counsel was ineffective by

failing to advise him to enter a conditional plea, is

without merit and not discussed.

2 Appellant Donald Keith Williams, a thrice-convicted

felo n, 1 appeals his conviction and sentence for unlawfully

possessing a firearm with an obliterated serial number, in

vio lation of 18 U.S.C. §§ 922(g)(1) and 924(a).

Williams claims that the district court erred in refusing to

grant him an additional one-level reduction for

acceptance o f responsibility pursuant to U.S.S.G. §

3E1.1(b)(2). 2 Finding no clear error by the district court,

we AFFIRM Williams' conviction and sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

In February, 1992, at the H & H Lounge in Temple,

Texas, Williams met with owner/bartender/bouncer Roy

Wood. Wood gave Williams ammunition, i .e., four or five

.25 caliber pistol rounds. Later that night, Williams was

in a fight with another bar patron and w as physically

removed from the bar premises by Wood. While

escorting Williams to the door, Wood felt a pistol in the

breast pocket of Williams' green army fatigue jacket.3 These police officers would later identify the man

they passed from a ph otograph as Donald Keith

Williams.

3 The remaining patr ons left the bar and the fight

continued in the parking lot. A few minutes later,

Williams returned to the lounge, banged on the door, and

demanded to be let in. Wood saw a small caliber

handgun in Williams' hand and called police.

Williams fled the H & H Lounge in a maroon pickup,

passing Temple pol ice officers responding to the call. 3

Two patrol units turned and gave chase for fifteen blocks

at speeds approximating seventy to eighty miles per hour.

Due to wet road conditions, the poli ce officers did not

attempt to overta ke the maroon pickup, just keep it

within their vision. When they lost sight of the vehicle,

they notified the radio dispatcher and terminated pursuit.

Meanwhile, Williams drove the pick up through a

cemetery, some medium-sized trees, and a barbed-wire

fence. He flipped it over at a nearby playground and left

it to rest, ri ght side up, on top of a jungle gym set.

Unobserved by police, Williams then fled the area on

foot, leaving behind his green army fatigue jacket

containing a Raven MP25 .25 caliber pistol wit h an4

obliterated serial number. Nine months later, a grand

jury returned a one-count indictment agains t Williams.

Williams remained a fugitive for more than two years.

Upon his arrest in March, 1994, he gave a voluntary

statement to authorities that he was the person who

possessed the gun, and that he had acquired it at the time

he stole the maroon pickup.

On the day of trial, without a plea agreement,

Wil liams pleaded guilty to the one-count indictment

ch arging him with being a felon in possession of a

firearm. Based upon an offense level of thirty-one and a

c riminal history category of VI, the district court

sentenced Williams in the middle of the sentencing

guideline range, i.e., a term of 210 months' imprisonment

and five years' supervised release. He is currently

incarcerated.

II. STANDARD OF REVIEW

This court reviews a district court's finding of

acceptance of responsibility for sentencing purposes for

clear error but "under a standard of review even more

deferentia l than a pure clearly erroneous standard."4 When Austin, T exas police officers stopped

Williams on March 17, 1994, he initially gave them a

false name, but later admitted his true name and told the

officers that he was "tired of running."

5 United States v. Gonzales

, 19 F.3d 982, 983 (5th Cir.)

(internal citation and quotati on omitted), c ert. denied

,

115 S. Ct. 229 (1994).

III. DISCUSSION

On appeal, Williams contends that the district court

erred in refusing to give him a three-level, instead of a

two-level, downward adjustment in his offense level for

acceptance of responsibility. U.S.S.G. §§ 3E1.1(b)(1)

and (2); (a). The district court based its finding on the

recommendation of the probation officer in her

Presentence Investigation Report (PSR).

In the PSR, the probation officer recommended a twolevel vis a vis three-level reduction as Williams had entered

his g uilty plea on the same day as his case was set for

trial, thereby causing the government to prepare for trial.

The pr obation officer also noted that Williams did not

"timely provide complete information to the government

concerning his own involvement in the offense,"

U.S.S.G. § 3E1.1(b)(1), as Williams absconded for over

two years before being arrested. 46

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. U nited States v. Mills

, 9

F.3d 1132, 1136 (5th Cir. 1993). The sentencing court is

directed to grant the addi tional decrease if: (1) the

defendant qualifies for the basic two-level de crease 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 authoriti e s" by either: (a)

providing complete informa t ion 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 p ermitting 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.

In this case the district court denied Williams'

suppression motion and Williams entered his guilty plea5 Cf. United States v. Bell

, No. 93-2663 (5th Cir.

1994) (unpublished) (where a guilty plea entered on the

day of trial was untimely in a case where the defendant's

motion to suppress had been denied eleven days prior to

trial).

7 both on the same day

-- the day of trial. 5 Williams argues

that he satisfied the third prong of the test by pleading

guilty. See U.S.S.G. § 3E1.1(b)(2).

Subsection (b)(2), U.S.S.G., defines timely acceptance

in fun ctional, not exclusively temporal, terms. U nited

Sta tes v. Kimple , 27 F.3d 1409, 1412 (9th Cir. 1994).

That is, a defendant is entitled to the additional reduction

f or timely notifying the authorities of his intention to

plead guilty if the two goals of that pr ovision are

fulfilled: (1) the government avoids needless trial

preparation, and (2) the court is able to allocate its

resources effi ciently. I d.

, see U.S.S.G. § 3E1.1(b)(2).

Application Note 6 provides in pertinent part:

For example, to qualify under

subsection (b)(2), the defend ant must

have n otified 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.

§ 3E1.1, comment. (n.6) (Nov. 1992) (emphasis added);

Kimple

, 27 F.3d at 1412. Note 6 further explains that6 A defendant who pleads guilty on the eve of trial is

not entitled to the additional one-level reducti on for

timely acceptance of responsibility under subsection

(b)(2). Kimple , 27 F.3d at 1413, citing United States v.

Robinson

, 14 F.3d 1200, 1203 (7th Cir. 1994) (guilty

plea four days before trial not timely acceptance); United

States v. Schau

, 1 F.3d 72 9, 731 (8th Cir. 1993)

(defendant not ent itled to timely acceptance reduction

where government had already prepared for trial before

defendant confessed and pled guilty); United States v.

Donovan

, 996 F .2d 1343, 1345 (1st Cir. 1993)

(defendant not entitled to timely acceptance reduction

where defendant's plea agreement was reached on the e v e

of a second trial date); United States v. Morillo

, 8 F.3d

864, 872 (1st Cir. 1993) (a defendant who "stands poised

on the brink of trial has no entitlement to the [(b)(2)

reduction]." Eve of trial pleas defeat the purpose of

subsection (b)(2) and do not necessari l y serve to

vindicate the defendant's constitution a l rights. K imple

, 27 F.3d at 1413. The defendant's guilty plea must come

early enough in the proceeding s to preclude the

government from p reparing for trial and to enable the

court to avoid unnecessarily expending judicial

resources. I d. ; see also United States v. Wilson

, 52 F.3d

329 (7th Cir. 1994) (unpublished) (where one

- level

decrease was denied when motion to suppress h earing

was held on March 11, the order denying motion to

suppress was entered on April 11, the trial was continued

until April 25, and again until May 31, and gu i lty plea

entered on the morning of trial, May 31).

8 " [i]n general

, the conduct qualifying for a decrease

. . . under

su bsection [(b)(2)] will occur particularly e arly in the case."

Id. (emphasis added). That provision is also careful to

point out, however, that the timelines s consideration is

context specific. Id. 6

A recent Seventh Circuit case, U nited States v.

Covarrubias

, 65 F.3d 1362 (7th Cir. 1995), decided after7 See United States v. Narramore , 36 F.3d 845, 846

(9th Cir. 1994) (pretrial mo tion to dismiss would have

"completely obviated" trial and a conditional offer to

plead guilty therefore would have prevented trial

preparation); cf

. United States v Morillo

, 8 F.3d 864, 872

(1st Cir. 1993) (even a conditional offer to pl ead guilty

does not entitle a defendant to an additional reduction

under U.S.S.G. § 3E1.1(b)(2)).

9 brie fs in this case were filed, closely parallels our own.

In Covarrubias

, the he aring on the defendant's

suppression motion was held on November 7, the

morning of trial, and, Covarrubias pleaded guilty as soon

as the motion was denied. The district court denied

Covarrubias the one-level reduction. The only fact that

distinguishes Covarrubias from this case is that the

original suppression hearing was scheduled for October

21, but continued over until November 7, the day of trial,

at Covarrubias' request. Covarrubias did not inform the

government that he would be pleading guilty in the event

that the s uppression motion was denied. 7 The Seventh

Circuit found that because Covarrubias made no attempt

to conserve government and court resources prior to the

day of tria l, the district court did not clearly err in

denying him the a dditional reduction. We find that the

same rationale applies here.

IV. CONCLUSION10

The district court did not clearly err in refusing to give

Williams an addit ional one-level reduction for sentencing

purposes for acceptance of responsibility under U.S.S.G.

§ 3E1.1(b)(2). We affirm Williams' conviction and

sentence.

AFFIRMED.