In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1335

United States of America,

Plaintiff-Appellee,

v.

Daniel Nielsen,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern

Division.

No. 99 CR 391-1--Charles R. Norgle, Sr., Judge.

Argued October 3, 2000--Decided November 13,

2000

 Before Flaum, Chief Judge, and Coffey and

Rovner, Circuit Judges.

 Flaum, Chief Judge. On the day prior to

his scheduled trial date, Daniel Nielsen

pleaded guilty to conspiracy to collect

extensions of credit by extortionate

means and was subsequently sentenced to

96 months of imprisonment. Nielsen

maintains on appeal that the district

court erred in denying him a one-level

reduction under sec. 3E1.1(b)(2) of the

sentencing guidelines for timely

notifying the authorities of his

intention to plead guilty. Because

Nielsen has failed to establish that the

district court committed clear error in

finding that Nielsen did not plead guilty

in a sufficiently timely manner to

warrant an additional reduction under

sec. 3E1.1(b)(2), we affirm.

I. Background

 On May 25, 1999, Daniel Nielsen and his

codefendant, Timothy Nielsen, were

charged with knowingly using extortionate

means to collect extensions of credit, in

violation of 18 U.S.C. sec. 894. A

superseding three-count indictment adding
additional extortion and conspiracy

charges under sec. 894 was returned on

July 13, 1999. 

 At his arraignment on July 30, Nielsen

entered a plea of not guilty as to all

three counts of the superseding

indictment. The trial date was

subsequently set for October 19. During

the months following his arraignment, and

as late as October 7, Nielsen filed a

number of pretrial motions, compelling

the government to prepare responses.

Included in the government’s responses

was a seventeen-page Santiago proffer,

582 F.2d 1128 (7th Cir. 1978), in

connection with the coconspirator

statements of codefendant Timothy

Nielsen. 

 On October 12, a second superseding

indictment was returned. This indictment

differed from the previous one only in

that it changed the dates and reversed

the sequence of certain events relating

to the alleged criminal activity. At a

status hearing held on October 15,

Nielsen asked for a continuance of the

trial date because of the changes made by

the second superseding indictment. In

response, the district court concluded

that, although the second superseding

indictment did not sufficiently alter the

previous indictment to justify a long

extension of the trial date, a short

extension was nonetheless appropriate.

The district court accordingly reset the

trial date from October 19 to October 26.

 On October 16, Nielsen’s counsel

notified the government that Nielsen

intended to plead guilty. However,

Nielsen did not actually execute a plea

agreement or enter a guilty plea until

October 25, one day before his trial was

scheduled to begin. In the resulting plea

agreement negotiated between Nielsen and

the government, the government

recommended a two-level reduction under

sec. 3E1.1(a) for acceptance of

responsibility, but it disagreed with

Nielsen’s contention that he was entitled

to an additional one-level reduction

under sec. 3E1.1(b). The probation

officer also recommended that Nielsen be

denied the additional reduction, finding

that he had not timely notified the

government of his intention to plead

guilty. Nielsen did not object to this

recommendation before sentencing.
 At sentencing, the district court denied

Nielsen’s request for an additional onelevel reduction under sec. 3E1.1(b),

accepting the government’s position that

Nielsen’s agreement to plead guilty had

occurred too late to warrant the

reduction. As the prosecutor indicated,

by the time Nielsen gave notice of his

intention to plead guilty, the government

had already invested substantial

resources in trial preparation, such as

bringing in witnesses, issuing subpoenas,

and making travel arrangements. The court

then determined the applicable sentencing

range to be 87 to 108 months and imposed

a term of 96 months of imprisonment

followed by supervised release for three

years. Nielsen filed a timely notice of

appeal. 

II. Discussion

 Section 3E1.1(b)(2) provides for an

additional one-level reduction for a

defendant who has received a twoleveldecrease for acceptance of

responsibility under sec. 3E1.1(a), if he

has "timely notif[ied] 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. sec. 3E1.1(b)(2)

(emphasis added). To qualify for an extra

one-level decrease under sec. 3E1.1(b),

the defendant must prove by a

preponderance of the evidence that he is

entitled to the additional reduction. See

United States v. Wilson, 134 F.3d 855,

871 (7th Cir. 1998). This court reviews

for clear error a district court’s

factual findings regarding acceptance of

responsibility under sec. 3E1.1. See

United States v. Branch, 195 F.3d 928,

937 (7th Cir. 1999). 

 In the present case, the district court

did not err in its determination that

Nielsen had not pleaded guilty in a

sufficiently timely manner to warrant a

reduction under sec. 3E1.1(b)(2). As the

plain language of sec. 3E1.1(b)(2) makes

clear, the relevant inquiry under the

guideline is whether Nielsen gave notice

of his intention to plead guilty at a

sufficiently early point in the process

to serve the purpose of conserving

government resources. See also U.S.S.G.

sec. 3E1.1, comment (n.6); United States
v. Francis, 39 F.3d 803, 808 (7th Cir.

1994). Here, by the time Nielsen express

ed an intent to plead guilty (only ten

days before trial), the government had

already responded to Nielsen’s pre-trial

motions and had prepared a lengthy

Santiago proffer in connection with the

coconspirator statements of Timothy

Nielsen. The government also indicated,

and Nielsen did not dispute, that it had

brought in witnesses, issued subpoenas,

and made travel arrangements. 

 Further, according to the government, it

could not stop preparing for trial even

after Nielsen gave notice of his

"intention" to plead guilty because of

the possibility that the plea would not

go through. Compare Wilson, 134 F.3d at

872 ("Because a defendant is not bound by

an expressed intention to plead guilty,

it may indeed be a rare case in which

intent, without more, actually will

result in the conservation of

resources"); Francis, 39 F.3d at 808

("Until the defendants actually pleaded

guilty, they could still change their

minds and the government still had to

prepare for the contingency that the

defendants might elect to go to trial").

Rather, it was not until Nielsen actually

entered a guilty plea, on the day before

the scheduled trial date, that the

government was able to halt its

preparations. This court has repeatedly

held that a defendant who waits to plead

guilty until the "brink of trial" is not

entitled to a reduction under sec.

3E1.1(b)(2). United States v.

Covarrubias, 65 F.3d 1362, 1367 (7th Cir.

1995); see also United States v. Hamzat,

217 F.3d 494, 498 (7th Cir. 2000) (plea

entered after originally scheduled trial

date untimely); Francis, 39 F.3d at 808

(one week before trial untimely); United

States v. Robinson, 14 F.3d 1200, 1203

(7th Cir. 1994) (four days before trial

untimely). Thus, here, in light of the

last-minute nature of Nielsen’s plea and

the continuing burden imposed on the

government, the district court did not

err in denying Nielsen an additional onelevel reduction under sec. 3E1.1(b)(2). 

 Nielsen attempts to excuse the

untimeliness of his plea by arguing that

he expressed his intention to plead

guilty within just four days of the

return of the second superseding

indictment, which, he says, finally
incorporated an accurate account of the

facts constituting the charged offenses.

According to Nielsen, it is not

unreasonable for a defendant to be

hesitant to waive his right to trial when

the government is indicating, through its

then pending indictment, that it intends

to try to prove a set of events that did

not happen in the sequence or on the

dates that the government alleges. This

argument is unavailing. As the government

points out, before the second superseding

indictment was returned, the government

had already made extensive prior

disclosures, which gave Nielsen the full

and complete picture of the evidence that

the government intended to present at

trial. Further, as recognized by the

district court, the second superseding

indictment made only minor modifications

to the previous indictment, i.e., to the

dates and sequence of certain events

underlying the crime. It is thus fanciful

for Nielsen to now suggest that the

changes made in the second superseding

indictment somehow excuse the last-minute

nature of his plea. Rather, any dispute

over the dates contained in the first

superseding indictment should have been

resolved earlier and should not have

delayed notification of his intent to

plead guilty. Compare United States v.

Senn, 129 F.3d 886, 897 (7th Cir. 1997)

(finding that a guilty plea entered only

three days before the scheduled start of

a narcotics trial was untimely and that

any disagreement as to the amount of

narcotics possessed by the defendant

should not have delayed the plea).

 Furthermore, there is no authority

supporting Nielsen’s proposition that the

timeliness of a plea should be measured,

for purposes of sec. 3E1.1(b)(2), in

relation to the date on which the last

indictment is returned in the case.

Rather, as discussed above, the relevant

inquiry under sec. 3E1.1(b)(2) is whether

the defendant notified the authorities of

his intention to plead guilty in a

sufficiently timely manner to serve the

purpose of conserving government and

court resources. For the reasons

previously mentioned, Nielsen has failed

to meet this standard. 

 Finally, Nielsen argues that because

codefendant Timothy Nielsen was awarded

the third point under sec. 3E1.1(b) he

should have been as well, as he suggests
there is no legally significant

difference between the two defendants

with respect to their eligibility for the

third point. To the extent that Nielsen

is contending that the district court

improperly awarded Timothy Nielsen the

extra point, it does not follow that

Daniel Nielsen should gain a similar

benefit by reason of his codefendant’s

allegedly too lenient sentence. See

United States v. Edwards, 945 F.2d 1387,

1398 (7th Cir. 1991). Furthermore, the

district court could have rightly

determined that the two defendants should

be treated differently. Perhaps, as the

government suggests, the court found it

persuasive that Timothy Nielsen

cooperated extensively with the

government and did so before the entry of

his guilty plea. 

 In any event, whether Timothy Nielsen

was properly awarded the third point

under sec. 3E1.1(b)(2) is a question that

this court need not, and can not, decide.

See United States v. Smith, 897 F.2d 909,

911 (7th Cir. 1990) (stating that the

court did not have jurisdiction to review

the sentence of the appellant’s

codefendant). If the sentence imposed

upon Daniel Nielsen falls within the

applicable guideline, then it can not be

overturned simply because another

defendant was sentenced differently. See

United States v. Simmons, 218 F.3d 692,

696 (7th Cir. 2000); Edwards, 945 F.2d at

1398. As discussed above, the district

court did not err in determining that

Nielsen had not pleaded guilty in a

sufficiently timely manner to warrant an

additional one-level reduction under sec.

3E1.1(b)(2). The fact that his

codefendant was awarded the extra

reduction is thus simply not relevant to

the instant case. 

III. Conclusion

 Accordingly, for all the above reasons,

the judgment of the district court is

AFFIRMED.