*The Honorable Milton I. Shadur, Senior District Judge, United States

District Court of the Northern District of Illinois, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 31 2003

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

vs.

GUADALUPE MARQUEZ,

Defendant - Appellant.

No. 02-3317

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 02-CR-10024-WEB)

Brent I. Anderson, Assistant United States Attorney (and Eric F. Melgren, United

States Attorney, on the brief), Wichita, Kansas, for Plaintiff - Appellee.

Steven K. Gradert, Assistant Federal Public Defender (and David J. Phillips,

Federal Public Defender, on the brief), Wichita, Kansas, for Defendant -

Appellant.

Before SEYMOUR, KELLY, Circuit Judges and SHADUR*, District Judge.

KELLY, Circuit Judge.
- 2 -

Defendant-Appellant Guadalupe Marquez entered a conditional plea of

guilty to one count of possession with intent to distribute more than 100

kilograms of marijuana, 21 U.S.C. §§ 841(a), (b)(1)(B), reserving his right to

appeal the district court’s order denying his motion to suppress. The district court

sentenced him to 41 months of imprisonment followed by a three-year term of

supervised release. In so doing, the district court granted a two-level reduction of

his base offense level for acceptance of responsibility under U.S.S.G. §

3E1.1(a)(2001), but declined to reduce the offense level by an additional level

under § 3E1.1(b). 

On appeal Mr. Marquez argues that the district court erred in denying his

motion to suppress because (1) the search of his recreational vehicle (“RV”)

exceeded the scope of his consent, and (2) the search was unsupported by

probable cause. In addition, Mr. Marquez argues that the district court

erroneously declined to grant the third-level reduction under U.S.S.G. § 3E1.1(b). 

Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we

affirm in part and reverse in part. 

Background

In February 2002, an officer with the Kansas Highway Patrol (“the officer”)

stopped to offer assistance to two men who were working on the engine of an RV
- 3 -

in the parking lot of a sandwich shop in Colby, Kansas. The conversation that

ensued was recorded by a microphone worn on the officer’s uniform and a video

camera mounted in his patrol car. The officer asked whether the men required

assistance and Mr. Marquez responded by informing him of the nature of the

engine problems they were experiencing and inquiring whether there were any

mechanics located nearby. In response to further questioning, Mr. Marquez

indicated that he was a Mexican citizen who had resided in California for the past

17 years, that he was going to Boston, Massachusetts for a two-month vacation,

and that his passenger was out of work. The officer thereafter wished the two

men well on their vacation and began to walk away when he quickly returned and

asked if they would be willing to answer a few more questions. 

After he reinitiated the conversation, the officer asked Mr. Marquez if there

were any guns or drugs in the RV. After Mr. Marquez responded in the negative,

the officer asked if he could search the vehicle. Mr. Marquez agreed, and after

retrieving the keys from the front seat of the vehicle and unlocking the RV’s door,

he motioned with his hand for the officer to enter. The officer testified that upon

entering the RV he saw no toiletries of any kind, no clothes in the closets, no food

in the refrigerator, and that the refrigerator was not operating. He thereafter

inspected a bench seat on the passenger side of the RV that was covered with a

removable cushion. The officer testified that he knew from experience that such
- 4 -

benches often double as storage areas, and after removing the cushion he

discovered a piece of plywood that had been nailed down to the bench. Based on

the lack of amenities in the RV, Mr. Marquez’s indication that he was on a twomonth vacation, and the suspicious condition of the storage bench, the officer

suspected that the two men were transporting drugs and therefore decided to

attempt to gain access to the compartment. 

The officer thereafter exited the RV to retrieve some tools to assist in

opening the compartment. Before he had a chance to return to the RV, a deputy

with the Thomas County Sheriff’s Department (“the deputy”) arrived on the scene

to see whether he could be of assistance. After explaining the situation to the

deputy, the officer and the deputy re-entered the RV and began to remove the

nailed-down plywood covering. The deputy testified that upon entering the RV he

could smell the odor of raw marijuana. II R. Doc. 39 at 62. After the officer

showed the deputy the storage bench, the officer used a screwdriver to pry off the

plywood covering, which revealed a second, newer piece of wood that was

secured to the bench with screws. Id. at 22-23. After unscrewing the second

piece of wood with an electric drill, they discovered several packages of

marijuana and placed both men under arrest. Id. at 23.

In his motion to suppress Mr. Marquez argued, inter alia, that the search of

the RV exceeded the scope of his consent when the officer pried open the nailed-
- 5 -

down covering on the storage compartment. The district court disagreed, holding

first that the search did not exceed the scope of Mr. Marquez’s consent because,

under Florida v. Jimeno, 500 U.S. 248, 252 (1991), a general consent to search

extends to containers that could contain contraband, and Mr. Marquez did not

limit the search or otherwise object to the search of the compartment. I R. Doc.

22 at 13. Moreover, the district court found that there was no evidence that the

removal of the plywood damaged or destroyed either the plywood or the

compartment, and that the search was therefore not beyond the scope of the

consent under United States v. Osage, 235 F.3d 518, 521 (10th Cir. 2000). I R.

Doc. 22 at 13. Additionally, the district court stated that it was persuaded that the

deputy detected an odor of marijuana prior to attempting to remove the naileddown piece of plywood, and that the officers therefore had probable cause to

believe that the compartment contained drugs. Id. at 12. 

On May 13, 2002, one week after the district court denied his motion to

suppress, Mr. Marquez entered a conditional guilty plea to one count of

possession with intent to distribute more than 100 kilograms of marijuana. The

presentence report (“PSR”) concluded that Mr. Marquez was eligible for a twolevel reduction of his offense level for acceptance of responsibility under

U.S.S.G. § 3E1.1(a), but that a three-level reduction under § 3E1.1(b) was not

warranted because he did not plead guilty in a timely manner or timely provide
1

 Mr. Marquez also objected to the PSR’s failure to make a determination

of his eligibility to receive a sentence below the applicable statutory minimum

sentence under the “safety valve” provision of U.S.S.G. § 5C1.2. IV R. at 13. At

the sentencing hearing, the district court orally granted the safety valve reduction. 

III R. Doc. 41 at 10. Moreover, the judgment reflects that Mr. Marquez’s

sentence took into account a reduction under § 5C1.2. I R. Doc. 28 at 2. 

However, in a sentencing order filed nearly one month after Mr. Marquez was

sentenced, the district court stated that it was denying Mr. Marquez’s request for

“an additional one level reduction under the ‘safety valve’ provisions of USSG

5C1.2.” I R. Doc. 36 at 1. Notwithstanding the district court’s reference to §

5C1.2, it is clear from the sentencing order that the district court did not intend to

reverse its prior holding that the safety valve provision applied and that it

mistakenly cited § 5C1.2 in making its ruling. For that reason, and because an

oral pronouncement of sentence from the bench controls over other written

language, see, e.g., United States v. Young, 45 F.3d 1405, 1417 (10th Cir. 1995),

we need not remand the case to the district court to determine whether it intended

to apply the safety valve provision in Mr. Marquez’s case.

- 6 -

complete information concerning his involvement in the offense. Mr. Marquez

objected, arguing that he timely notified the government of his intent to plead

guilty and that he timely admitted his involvement in the offense and “described

everything he knew about the case to the law enforcement personnel when he was

first apprehended.” IV R. at 12, ¶ 67.1 The district court declined to reduce Mr.

Marquez’s offense level by an additional level, and this appeal followed. 

Discussion

1. The Motion to Suppress

Mr. Marquez challenges the denial of his motion to suppress on the ground

that the district court erroneously concluded that (1) the search of the storage
- 7 -

bench was within the scope of his consent, and (2) the search of the RV was

based on probable cause. In reviewing the denial of a motion to suppress, we

view the evidence in the light most favorable to the government, accept the

district court’s findings of fact unless clearly erroneous, and review the ultimate

determination of reasonableness under the Fourth Amendment de novo. United

States v. Higgins, 282 F.3d 1261, 1269 (10th Cir. 2002).

When law enforcement officers rely upon consent to justify a warrantless

search, the scope of the consent determines the permissible scope of the search. 

Jimeno, 500 U.S. at 251-52. In Jimeno, the Supreme Court held that a search of a

container within a vehicle does not exceed the scope of a suspect’s consent to

search “when, under the circumstances, it is objectively reasonable for the officer

to believe that the scope of the suspect’s consent permitted him to open a

particular container within the automobile.” Id. at 249. Alternatively, the Court

stated that, absent an objection by the suspect, an officer does not exceed the

scope of a suspect’s consent “if his consent would reasonably be understood to

extend to a particular container.” Id. at 252. Consequently, the Court framed the

issue before it as whether it was reasonable for the officer to consider the

suspect’s general consent to search his vehicle to include consent to search a

paper bag that was lying on the floor of his car. Id. at 251. Accordingly, we must

determine whether it was reasonable for the officer to consider Mr. Marquez’s
- 8 -

consent to search his RV as extending to the storage compartment at issue. We

hold that it was. 

In arguing that the search of the compartment exceeded the scope of his

consent, Mr. Marquez makes much of the statement in Jimeno that although it

would be reasonable to conclude that a general consent to search a vehicle

includes consent to search a paper bag located therein, “[i]t is very likely

unreasonable to think that a suspect, by consenting to the search of his trunk, has

agreed to the breaking open of a locked briefcase within the trunk.” Id. at 251-

52. From this, Mr. Marquez argues that “it is unlikely and unreasonable to

conclude that he would have wanted [the officer] to rip nails out of his seating

area which contained the contraband . . . . It was an act that is more akin to

breaking into a locked suitcase.” Aplt. Br. at 7-8. 

Of course, the test for determining the scope of a suspect’s consent is not

whether the suspect “would have wanted” an officer to search a container that

contained contraband. If such were the test, we would be obliged to suppress the

evidence in this and every other case involving a defendant who did not wish to

be caught transporting narcotics. On the contrary, the proper inquiry is whether it

would be objectively reasonable for a law enforcement officer to conclude that a

suspect’s general consent to search extends to a particular container in a car, see

Jimeno, 500 U.S. at 251, not whether a suspect would conclude that the search of
- 9 -

a container is reasonable. 

Moreover, the fact that the compartment here could be considered “more

akin” to a locked briefcase than to a paper bag on the floor of a vehicle does not

compel a holding that the search of the compartment here exceeded the scope of

Mr. Marquez’s consent. Neither analogy is particularly apt. For one thing, the

compartment is unlike a locked briefcase in the sense that it constituted an

integral part of the vehicle that was searched. This fact is significant in construing

the scope of Mr. Marquez’s consent inasmuch as his consent pertained to the RV,

which of course included the storage compartment at issue. Moreover, in

upholding the search of the container in Jimeno, the Supreme Court found it

significant that the officer had informed the suspect that he wanted to search the

car for narcotics. In this regard, the Court stated that: 

We think that it was objectively reasonable for the police to conclude

that the general consent to search respondents’ car included consent

to search containers within that car which might bear drugs. A

reasonable person may be expected to know that narcotics are

generally carried in some form of a container. Contraband goods

rarely are strewn across the trunk or floor of a car. The authorization

to search in this case, therefore, extended beyond the surfaces of the

car’s interior . . . . 

Id. (quotations and citations omitted). The same thing can be said about the

search at issue here. The videotape of the search reveals that Mr. Marquez gave

his consent to search after denying that he had either drugs or guns in the RV, and

only after the officer specifically asked if he could search for guns or drugs. VI
- 10 -

R. (videotape). Because narcotics could have been secreted in the storage

compartment, we believe it was reasonable for the officer to conclude that the

scope of Mr. Marquez’s consent extended to the search of that particular

container. See United States v. Ramstad, 308 F.3d 1139, 1146-47 (10th Cir.

2002) (noting that where officer has indicated his intent to search for drugs or

contraband, a suspect’s consent “certainly implies that the officer could look

wherever drugs might be hidden.”). Furthermore, at no time did Mr. Marquez

limit the scope of his consent to search the vehicle or otherwise indicate that he

did not wish the officers to search the compartment, a fact this court has often

found significant in determining whether a law enforcement officer has exceeded

the scope of a suspect’s consent. See, e.g., United States v. Gordon, 173 F.3d

761, 766 (10th Cir. 1999) (“We consistently and repeatedly have held a

defendant’s failure to limit the scope of a general authorization to search, and

failure to object when the search exceeds what he later claims was a more limited

consent, is an indication the search was within the scope of consent.”).

In arguing that the search of the compartment exceeded the scope of his

consent, Mr. Marquez also relies heavily on United States v. Osage, 235 F.3d 518

(10th Cir. 2000). In Osage, we held that “before an officer may actually destroy

or render completely useless a container which would otherwise be within the

scope of a permissive search, the officer must obtain explicit authorization, or
- 11 -

have some other, lawful, basis upon which to proceed.” Id. at 522. Osage is

inapposite, however, as that case involved the opening (and destruction) of a can

of tamales contained in a suitcase belonging to a train passenger who had

consented to a search of the suitcase. Here, the district court found that there was

“no evidence that the officers’ removal of the plywood damaged or destroyed the

storage container or the plywood covering.” I R. Doc. 22 at 13. If damage to the

compartment did occur, it was de minimis in nature, and well short of the type of

“complete and utter destruction or incapacitation” that was the focus of our

concern in Osage. 235 F.3d at 522. We therefore reject the argument that the

officer exceeded the scope of Mr. Marquez’s consent based on any damage

inflicted upon the compartment.

We are satisfied that it was objectively reasonable for the officer to

conclude that the consent to search given by Mr. Marquez extended to the storage

compartment at issue. Mr. Marquez consented to the search of the RV, the

storage compartment was an integral part of the RV, the compartment could have

contained narcotics, and Mr. Marquez did not limit the scope of his consent. We

are therefore presented with a situation not much different than the situation

presented in several of our cases upholding an officer’s partial dismantling of an

automobile pursuant to a general consent to search when the suspect did not

object. See United States v. Pena, 920 F.2d 1509, 1515 (10th Cir. 1990)
2

 In light of this conclusion, we need not address the issue of whether the

officer had probable cause to search the compartment. 

- 12 -

(unscrewing and removal of rear quarter panel vent not beyond scope of suspect’s

consent in absence of objection by suspect); United States v. Santurio, 29 F.3d

550, 553 (10th Cir. 1994) (unscrewing strip holding down interior carpet and

removing carpet not beyond scope of consent to search); United States v.

Espinosa, 782 F.2d 888, 892 (10th Cir. 1986) (upholding removal of back seat of

vehicle in absence of objection by the suspect). We therefore conclude that the

district court properly held that the officer did not exceed the scope of Mr.

Marquez’s consent by searching the compartment.2

2. The Third-Level Reduction Under U.S.S.G. § 3E1.1(b)

Mr. Marquez also argues that the district court erred in denying his request

for an additional offense level reduction for acceptance of responsibility under

U.S.S.G. 3E1.1(b). Mr. Marquez has the burden of establishing his entitlement to

this additional decrease in his offense level by a preponderance of the evidence. 

United States v. Heredia-Cruz, 328 F.3d 1283, 1288 (10th Cir. 2003). We review

a district court’s legal conclusions under the Sentencing Guidelines de novo, and

review its findings of fact for clear error. Id. The question of whether a

defendant is entitled to an additional offense level reduction under § 3E1.1(b) is a

question of fact. Id. at 1289. 
- 13 -

Under U.S.S.G. § 3E1.1(a), a defendant who “clearly demonstrates

acceptance of responsibility for his offense” is entitled to a two-level reduction in

his offense level. Moreover, such a defendant may obtain an additional one-level

reduction if:

[T]he defendant qualifies 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 . . . .

U.S.S.G. § 3E1.1(b). 

At the sentencing hearing Mr. Marquez objected to the PSR’s failure to

recommend a third-level reduction under § 3E1.1(b)(1) on the ground that he

disclosed everything he knew about the offense to the authorities at the time of

his arrest, and that he was entitled to a reduction under § 3E1.1(b)(2) because he

timely notified the government of his intent to plead guilty. III R. Doc. 41 at 5-6. 

As to his request for a reduction under § 3E1.1(b)(2), the district court found that

a reduction under that provision was not warranted because (1) Mr. Marquez

entered his guilty plea “on the eve of trial,” and (2) he pleaded guilty only after a
3

 As noted above, instead of denying Mr. Marquez’s request for a one-level

reduction under § 3E1.1(b)(1), the district court stated in its sentencing order that

it was denying Mr. Marquez’s request “under the ‘safety valve’ provisions of

USSG 5C1.2.” I R. Doc. 36 at 1. In making this statement, we are satisfied that

the district court intended to deny Mr. Marquez’s claim that he was entitled to the

third level reduction provided for in § 3E1.1(b)(1), but instead mistakenly cited §

5C1.2. This conclusion is supported by the fact that the district court’s reference

to § 5C1.2 was made in the context of responding to what the district court

characterized as Mr. Marquez’ claim “that he is entitled to an additional one level

reduction.” I R. Doc. 36 at 1 (emphasis added). Of course, it is § 3E1.1(b)(1)

which entitles a defendant to “an additional one level reduction” based on the

disclosure of information concerning the offense, not the “safety valve” provision

of § 5C1.2, which operates to entitle a defendant to be sentenced below the

applicable statutory minimum sentence and receive a two-level offense level

reduction under U.S.S.G. § 2D1.1(b)(6). 

- 14 -

long suppression hearing that required the attendance of nearly all of the

government’s witnesses. I R. Doc. 36 at 1. Likewise, the district court denied

Mr. Marquez’s request for a reduction under § 3E1.1(b)(1),3 holding that

“defendant is not entitled to such additional reduction because he has not

provided any information as to where or when he obtained the marijuana, and the

names of the persons who were to receive the shipment.” Id. at 1-2.

We first address Mr. Marquez’s argument that he is entitled to an additional

one-level reduction in his offense level under § 3E1.1(b)(1). Specifically, Mr.

Marquez argues that he disclosed everything he knew about his involvement

shortly after his arrest: the amount he was paid to transport the drugs, the amount

he was to receive upon successful delivery, and the fact that he was hired to drive

the RV from California to Boston, Massachusetts. Aplt. Br. at 13. The district
- 15 -

court, however, found that he failed to provide information regarding where he

obtained the marijuana, how long it had been in his possession, and the names of

the individuals who were to receive it. Under such circumstances, we cannot say

that the district court erred in holding that Mr. Marquez was not entitled to a

reduction for providing complete information concerning his involvement in the

offense. 

We reach a different conclusion as to Mr. Marquez’s request for a reduction

under § 3E1.1(b)(2). In determining whether the district court properly denied

Mr. Marquez’s request for an additional reduction under this section, the

determinative inquiry is whether Mr. Marquez’s notification of his intent to plead

guilty was timely. The application notes to § 3E1.1 explain that the timeliness

question is “context specific,” and that a defendant’s notification must generally

“occur particularly early in the case” in order to be sufficient. U.S.S.G. § 3E1.1,

cmt. n.6. However, § 3E1.1 and the accompanying application notes also make it

clear that timeliness should be determined by reference to functional rather than

“strictly temporal” terms. United States v. Cunningham, 201 F.3d 20, 25 (1st Cir.

2000); see also United States v. Dethlefs, 123 F.3d 39, 43 (1st Cir. 1997) (noting

that “[t]imeliness is a concept, not a constant, and it normally must be evaluated

in context.”). “[T]o qualify under subsection (b)(2), the defendant must have

notified authorities of his intention to enter a plea of guilty at a sufficiently early
- 16 -

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, cmt. n.6. 

In its sentencing order denying Mr. Marquez’s objections to the PSR, the

district court explained its decision as follows:

The Court finds that this objection should be denied. While

defendant claims that he fully accepted responsibility for his offense,

it is clear that his plea was entered on the eve of trial, and only after

a lengthy suppression hearing which required the attendance of all

but one of the government’s witnesses. 

I R. Doc 36 at 1. Because we believe that under the circumstances of this case

both reasons offered by the district court constitute impermissible grounds upon

which to base a denial of the third level reduction under § 3E1.1(b)(2), we

reverse.

First, we have little difficulty concluding that the district court erred in

relying in part on the fact that Mr. Marquez entered a guilty plea only after a

“lengthy suppression hearing” that just so happened to require the attendance of

most of the government’s witnesses. Although the question of how the filing of

a motion to suppress should affect the inquiry under § 3E1.1(b)(2) has yet to be

addressed in this circuit, we agree with those circuits holding that a district court

may not penalize a defendant for bringing a non-frivolous motion to suppress by

denying a reduction under subsection (b)(2). See, e.g., United States v. Kimple,

27 F.3d 1409, 1413 (9th Cir. 1994) (“The denial of a reduction under subsection
- 17 -

(b)(2) is impermissible if it penalizes a defendant who has exercised his

constitutional rights.”). A defendant, of course, is entitled to bring a motion to

suppress to protect his or her constitutional rights, and we agree that “[t]he

Guidelines do not force a defendant to forgo the filing of routine pre-trial

motions as the price of receiving a one-step decrease [under § 3E1.1(b)(2)].” 

United States v. Marroquin, 136 F.3d 220, 225 (1st Cir. 1998). 

The government takes the position that “if the government establishes that

it prepared for trial in conjunction with responding to pretrial motions, denial of

the reduction may be justified,” even if “[the district court] cannot deny the

reduction on the basis that the defendant exercised his constitutional rights at the

pretrial stage of the proceedings.” Aplee. Br. at 17 (citing Kimple, 27 F.3d at

1413-14). One obvious problem with this position is that it could conceivably

deprive a defendant of a reduction under subsection (b)(2) even where the

hearing, and subsequent notification of intent to plead guilty, occurred several

months prior to the trial date, based on the government’s claim that it “prepared

for trial in conjunction with responding to pretrial motions.” Id. Regardless, we

note that the record in the instant case is completely devoid of any evidence that

the government did anything to prepare for trial in addition to what was required

to prepare for the motion to suppress. Moreover, when asked at oral argument

whether there was any evidence in the record that the government had to prepare
4

 Significantly, in its brief and at oral argument, the government never

stated what, if anything, it did to prepare for trial beyond that which was required

to prepare for the motion to suppress. 

- 18 -

for trial, counsel for the government responded that such a conclusion should be

inferred from the mere fact that the suppression hearing occurred eight days

before the trial was scheduled to begin.4 However, preparation for a motion to

suppress is not the same as preparation for a trial. Even where, as here, there is

substantial overlap between the issues that will be raised at the suppression

hearing and those that will be raised at trial, preparation for a motion to suppress

would not require the preparation of voir dire questions, opening statements,

closing arguments, and proposed jury instructions, to name just a few examples. 

Consequently, we hold that where a defendant has filed a non-frivolous motion to

suppress, and there is no evidence that the government engaged in preparation

beyond that which was required for the motion, a district court may not rely on

the fact that the defendant filed a motion to suppress requiring a “lengthy

suppression hearing” to justify a denial of the third level reduction under §

3E1.1(b)(2). 

We reach a similar conclusion regarding the district court’s reliance on the

fact that Mr. Marquez’s plea “was entered on the eve of trial.” I R. Doc. 36 at 1.

We begin by noting that the proper focus is on when Mr. Marquez notified the

government of his intent to plead guilty, not on the date he actually entered his
- 19 -

plea. See U.S.S.G. § 3E1.1(b)(2); United States v. Munoz, 83 F.3d 7, 9 (1st Cir.

1996). Mr. Marquez notified the government of his intent to plead guilty on May

6, 2002, eight days prior to the date on which his trial was scheduled to begin. 

Aplee. Br. at 17. Significantly, however, the suppression hearing was held on

the same day. Consequently, Mr. Marquez’s seemingly belated notification of

his intent to plead guilty actually occurred promptly after the district court orally

denied his motion to suppress, which had been filed on April 17, 2002. 

Moreover, counsel for the government conceded at oral argument that under the

procedures in place in the court where the proceedings were held, suppression

hearings were routinely scheduled to occur as late as eight days before trial, and

that it was not Mr. Marquez’s fault that his hearing was scheduled to occur at

such a late date. 

As noted above, the determination of whether a defendant’s notification of

his or her intent to plead guilty is “timely” cannot be made without regard to the

context within which the notification was made. Where a defendant has filed a

motion to suppress, the defendant cannot make an informed decision regarding

whether he or she should plead guilty until it is known how the district court will

respond to the motion. It is true that a defendant certainly has the ability to

inform the government, in advance of a suppression hearing, of his or her intent

to plead guilty in the event that the district court denies the motion. However,
- 20 -

we do not believe such a conditional notification of intent should be required to

preserve a defendant’s eligibility for a reduction under § 3E1.1(b)(2). A

defendant who gives such a notification may undercut his own defense, as well

as his ability to negotiate for and ultimately obtain a plea agreement. 

Given that the district court erred in relying on the factors discussed

above, we next consider the proper remedy. We need not remand to the district

court to determine Mr. Marquez’s eligibility for the reduction given the explicit

considerations that both the district court and this court have given to the

relevant factors. After thoroughly reviewing the parties’ briefs and the record on

appeal, we are satisfied that under the facts of this case Mr. Marquez was

entitled to the additional reduction under § 3E1.1(b)(2). Accordingly, we

AFFIRM the district court’s denial of Mr. Marquez’s motion to suppress,

REVERSE its denial of his request for an additional one-level reduction under

U.S.S.G. § 3E1.1(b)(2), and remand with instructions to grant Mr. Marquez a

one-level decrease in his offense level and resentence him accordingly.