* The Honorable Milton I. Shadur, Senior District Jud ge, 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, fo r Plaintiff - Appellee. Steven K. Gradert, Assistant Federal Public Defende r (and David J. Phillips, Federal Public Defender, on the brief), Wichita, Ka nsas, for Defendant - Appellant.

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

KELLY , Circuit Judge.- 2 -

Defendant-Appellant Guadalupe Marquez entered a con ditional plea of guilty to one count of possession with intent to di stribute 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 motio n to suppress. The district court sentenced him to 41 months of imprisonment followedby 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 responsibi lity 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 re creational vehicle (“RV”) exceeded the scope of his consent, and (2) the sear ch was unsupported by probable cause. In addition, Mr. Marquez argues th at the district court erroneously declined to grant the third-level reduc tion 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, Kan sas. The conversation that ensued was recorded by a microphone worn on the off icer’s uniform and a video camera mounted in his patrol car. The officer aske d whether the men required assistance and Mr. Marquez responded by informing h im of the nature of the engine problems they were experiencing and inquirin g whether there were any mechanics located nearby. In response to further q uestioning, Mr. Marquez indicated that he was a Mexican citizen who had res ided in California for the past 17 years, that he was going to Boston, Massachusett s for a two-month vacation, and that his passenger was out of work. The office r thereafter wished the two men well on their vacation and began to walk away w hen 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. Marque z 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 vehi cle 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, n o 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 k new from experience that such- 4 -

benches often double as storage areas, and after re moving 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 indi cation 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 so me 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 d eputy”) 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 testifiedthat 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 us ed a screwdriver to pry off the plywood covering, which revealed a second, newer pi ece 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 discover ed 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 o fficer 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 M r. Marquez’s consent because, under Florida v. Jimeno , 500 U.S. 248, 252 (1991), a general consent to se arch 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 st ated 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 theref ore 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. Marqu ez 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 reducti on under § 3E1.1(b) was not warranted because he did not plead guilty in a time ly manner or timely provide1 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 g ranted the safety valve reduction. III R. Doc. 41 at 10. Moreover, the judgment refle cts 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 de nying 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 di strict court’s reference to § 5C1.2, it is clear from the sentencing order that t he district court did not intend to reverse its prior holding that the safety valve pro vision applied and that it mistakenly cited § 5C1.2 in making its ruling. Forthat reason, and because an oral pronouncement of sentence from the bench contr ols 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 t o 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 gover nment 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 enforc ement 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 o f a motion to suppress, we view the evidence in the light most favorable to th e government, accept the district court’s findings of fact unless clearly erroneous, and review the ultimate determination of reasonableness under the Fourth Am endment 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 per missible 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 scop e of a suspect’s consent to search “when, under the circumstances, it is object ively 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 th e 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 officerto consider Mr. Marquez’s- 8 -

consent to search his RV as extending to the storag e compartment at issue. We hold that it was. In arguing that the search of the compartment excee ded the scope of his consent, Mr. Marquez makes much of the statement inJimeno that although it would be reasonable to conclude that a general cons ent to search a vehicle includes consent to search a paper bag located ther ein, “[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 w ithin the trunk.” Id. at 251- 52. From this, Mr. Marquez argues that “it is unli kely 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 wo uld be obliged to suppress the evidence in this and every other case involving a d efendant 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 enforceme nt 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 conc lude 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 compartmenthere exceeded the scope of Mr. Marquez’s consent. Neither analogy is particul arly apt. For one thing, the compartment is unlike a locked briefcase in the sen se that it constituted an integral part of the vehicle that was searched. Thi s 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 atissue. Moreover, in upholding the search of the container in Jimeno , the Supreme Court found it significant that the officer had informed the suspe ct that he wanted to search the car for narcotics. In this regard, the Court state d that: We think that it was objectively reasonable for the police to conclude that the general consent to search respondents’ carincluded consent to search containers within that car which might be ar drugs. A reasonable person may be expected to know that narc otics are generally carried in some form of a container. Con traband goods rarely are strewn across the trunk or floor of a ca r. The authorization to search in this case, therefore, extended beyond the surfaces of the car’s interior . . . . Id. (quotations and citations omitted). The same thin g 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 eit her drugs or guns in the RV, and only after the officer specifically asked if he cou ld 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 o fficer to conclude that the scope of Mr. Marquez’s consent extended to the sear ch 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, atno time did Mr. Marquez limit the scope of his consent to search the vehicl e 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 enfo rcement 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 rep eatedly 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 l ater 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 excee ded 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 dest roy or render completely useless a container which woul d otherwise be within the scope of a permissive search, the officer must obta in explicit authorization, or- 11 -

have some other, lawful, basis upon which to procee d.” Id. at 522. Osage is inapposite, however, as that case involved the open ing (and destruction) of a can of tamales contained in a suitcase belonging to a t rain passenger who had consented to a search of the suitcase. Here, the d istrict court found that there was “no evidence that the officers’ removal of the plyw ood damaged or destroyed the storage container or the plywood covering.” I R. D oc. 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 argume nt that the officer exceeded the scope of Mr. Marquez’s consentbased 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. Ma rquez 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 d ifferent than the situation presented in several of our cases upholding an offi cer’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 compartmen t. - 12 - (unscrewing and removal of rear quarter panel vent not beyond scope of suspect’s consent in absence of objection by suspect); UnitedStates 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 sear ch); United States v. Espinosa , 782 F.2d 888, 892 (10th Cir. 1986) (upholding rem oval of back seat of vehicle in absence of objection by the suspect). W e therefore conclude that the district court properly held that the officer did n ot 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 err ed in denying his request for an additional offense level reduction for accep tance of responsibility under U.S.S.G. 3E1.1(b). Mr. Marquez has the burden of e stablishing 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 Sent encing 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 leve l 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 “clearlydemonstrates acceptance of responsibility for his offense” is en titled 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 subs ection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant has assisted authorit ies 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 gov ernment 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 t he 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 ple ad 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 a3 As noted above, instead of denying Mr. Marquez’s request for a one-level

reduction under § 3E1.1(b)(1), the district court s tated in its sentencing order that it was denying Mr. Marquez’s request “under the ‘sa fety valve’ provisions of USSG 5C1.2.” I R. Doc. 36 at 1. In making this st atement, we are satisfied that the district court intended to deny Mr. Marquez’s c laim 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 th at 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 ent itled 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 le vel reduction” based on the disclosure of information concerning the offense, n ot the “safety valve” provision of § 5C1.2, which operates to entitle a defendant t o be sentenced below the applicable statutory minimum sentence and receive a two-leveloffense level reduction under U.S.S.G. § 2D1.1(b)(6). - 14 - long suppression hearing that required the attendan ce of nearly all of the government’s witnesses. I R. Doc. 36 at 1. Likewi se, 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 reduc tion because he has not provided any information as to where or when he obt ained the marijuana, and the names of the persons who were to receive the shipme nt.” 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 § 3E 1.1(b)(1). Specifically, Mr. Marquez argues that he disclosed everything he knewabout 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 inf ormation 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 suchcircumstances, we cannot say that the district court erred in holding that Mr. M arquez 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 di strict court properly denied Mr. Marquez’s request for an additional reduction u nder this section, the determinative inquiry is whether Mr. Marquez’s noti fication 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 defendan t’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 ap plication notes also make it clear that timeliness should be determined by refer ence to functional rather than “strictly temporal” terms. United States v. Cunnin gham , 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, an d 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 pl ea of guilty at a sufficiently early- 16 -

point in the process so that the government may avo id 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 objec tions to the PSR, the district court explained its decision as follows: The Court finds that this objection should be denie d. While defendant claims that he fully accepted responsibil ity 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 th e 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 th e district court erred in relying in part on the fact that Mr. Marquez entere d a guilty plea only after a “lengthy suppression hearing” that just so happenedto require the attendance of most of the government’s witnesses. Although the q uestion of how the filing of a motion to suppress should affect the inquiry unde r § 3E1.1(b)(2) has yet to be addressed in this circuit, we agree with those circ uits holding that a district court may not penalize a defendant for bringing a non-fri volous 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 defendantwho has exercised his constitutional rights.”). A defendant, of course, is entitled to bring a motion to suppress to protect his or her constitutional right s, and we agree that “[t]he Guidelines do not force a defendant to forgo the fi ling of routine pre-trial motions as the price of receiving a one-step decrea se [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 gove rnment establishes that it prepared for trial in conjunction with respondin g to pretrial motions, denial of the reduction may be justified,” even if “[the dist rict 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 i s that it could conceivably deprive a defendant of a reduction under subsection(b)(2) even where the hearing, and subsequent notification of intent to p lead guilty, occurred several months prior to the trial date, based on the govern ment’s claim that it “prepared for trial in conjunction with responding to pretria l motions.” Id. Regardless, we note that the record in the instant case is complet ely 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, w hen asked at oral argument whether there was any evidence in the record that t he government had to prepare4 Significantly, in its brief and at oral argument, the government never

stated what, if anything, it did to prepare for tri al 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 he aring 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, pre paration for a motion to suppress would not require the preparation of voir dire ques tions, opening statements, closing arguments, and proposed jury instructions, to name just a few examples. Consequently, we hold that where a defendant has fi led a non-frivolous motion to suppress, and there is no evidence that the governm ent engaged in preparation beyond that which was required for the motion, a di strict court may not rely on the fact that the defendant filed a motion to suppr ess requiring a “lengthy suppression hearing” to justify a denial of the thi rd level reduction under § 3E1.1(b)(2). We reach a similar conclusion regarding the distric t court’s reliance on the fact that Mr. Marquez’s plea “was entered on the ev e of trial.” I R. Doc. 36 at 1. We begin by noting that the proper focus is on whenMr. Marquez notified the government of his intent to plead guilty, not on th e 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 supp ression hearing was held on the same day. Consequently, Mr. Marquez’s seemingl y belated notification of his intent to plead guilty actually occurred prompt ly after the district court orally denied his motion to suppress, which had been filedon April 17, 2002. Moreover, counsel for the government conceded at or al argument that under the procedures in place in the court where the proceedi ngs 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 hearin g was scheduled to occur at such a late date. As noted above, the determination of whether a defe ndant’s notification of his or her intent to plead guilty is “timely” canno t be made without regard to the context within which the notification was made. Wh ere a defendant has filed a motion to suppress, the defendant cannot make an in formed decision regarding whether he or she should plead guilty until it is k nown how the district court will respond to the motion. It is true that a defendantcertainly 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 o f 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 obta in a plea agreement. Given that the district court erred in relying on t he factors discussed above, we next consider the proper remedy. We need not remand to the district court to determine Mr. Marquez’s eligibility for th e reduction given the explicit considerations that both the district court and thi s court have given to the relevant factors. After thoroughly reviewing the p arties’ briefs and the record on appeal, we are satisfied that under the facts of th is 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 instruction s to grant Mr. Marquez a one-level decrease in his offense level and resente nce him accordingly.