1 United States Sentencing Commission, G uidelines Manual

,

§ 3E1.1(b) (Nov. 1992).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-1011

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BILLY JOE MILLS,

a/k/a Bobby Joe Mills,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(December 8, 1993)

Before JOHNSON, WIENER and DeMOSS, Circuit Judges.

WIENER, Circuit Judge.

This s entencing case implicates the proper application of a

relatively new provision of the United States Sentencing Guidelines

(the Guidelines) SQ subsection (b) of § 3E1.1 SQ which became effective

November 1, 1992. 1 Here, the district court found that DefendantAppellant Billy Joe Mills had clearly demonstrated his acceptance2

of responsibility, and awarded the 2-level decrease in his offense

level pursuant to § 3E1.1(a). The court refused, however, to award

Mills the additional 1-level decrease under § 3E1.1(b) (hereafter,

subsection (b)). This is the aspect of his sentencing that Mills

appeals. Agreeing with Mills that the district court erred in

denying him the additional 1-level decrease under subsection (b),

we reverse and modify his sentence and, as modified, affirm.

I

FACTS AND PROCEEDINGS

This case proceeded on an extremely fast track in the district

court. Mills and his brother were charged by indictment on June

16, 1 992, with conspiring to transport, and transporting, stolen

goods in interstate commerce. The government posited that Mills

was in a continuing commission of the crime from its inception in

J anuary 1992 through June 16, 1992, the date on which he was

charged.

Mills was arraigned on July 2, 1992, just two week s and two

days after he was charged. On July 6, the court set Mills' trial

date for August 3, 1992, just a month and a day after his

arraignment and only six weeks after he was charged and his

criminal conduct ceased.

On July 13, 1992 SQ seven days after his case was set for trial,

11 days after his arraignment, and only six weeks after he ceased

his criminal conduct and was charged SQ counsel for Mills and counsel

for the government reached a tentative plea agreement: If Mills

would plead guilty to one count of the two-count indictment, the3

government would dismiss the other count at sentencing.

Both counsel apparently a ssumed that Mills would accept the

p lea agreement thus negotiated on July 13, as on that day Mills'

re- arraignment was scheduled for Thursday, July 16, three days

later. But on Wednesday, July 16 S Q two days after counsel had

reached the tentative plea agreement and one day before Mills was

scheduled to be re-arraigned SQ his counsel advised government

counsel that Mills had not found the tentative plea agreement

acceptable. The re-arraignment scheduled for the following day,

July 16, was thus upset. The day after that (Friday, July 17)

counsel for Mills filed a Motion for Leave to File a Late Motion

and Brief, stating that "[a]t this point, it is dubious whether

this case will result in a plea." Six days later, on Thursday, July

23, the government filed a response to Mills' July 17 motion,

agreeing to some of Mills' discovery requests and objecting to

others.

Mills apparently had a quick change of heart: On the

following Thu rsday, July 30 S Q one week to the day after the

government had filed its response to Mills' discovery motion and 28

days after his arraignment SQ Mills pleaded guilty to the conspiracy

count in exchange for the dismissal of the remaining count of the

indictment. The record does not reflect precisely when Mills

informed the government that he would plead guilty, but his

intention to do so had to have been thus communicated sometime

after July 23 (the day on which the government filed its discovery

response) but before July 30 (the day on which Mills entered his4

plea). The government's brief to this court confirms by

implication that the notifica tion of intent to plead guilty pred ated the entry of plea on July 30 (". . . neither the court nor

the government could even be certain that Mills would actually

plead guilty on June 30th until he in fact did so plead").

In due course, the district court accepted Mills' guilty plea,

ordered a pre-sentence investigation to be completed by September

10, and set October 8 as the date for sentencing. As initially

submitted (at a time before subsection (b)'s No vember effective

date), the presentence investigation report (PSR) recommended a 2-

level decrease in Mills' offense level SQ the only adjustmen t for

acceptance of responsibility the n extant in the Guidelines S Q and

reported the amount of loss suffered by the victims of the crimes

perpetrated by Mills and his brother as "in excess of $500,000."

Sentencing was re-scheduled several times as a result of

Mills' objections to the portion of the PSR that established the

quantum of victim loss as exceeding $500,000. In a second addendum

to the PSR, the loss was reduced to $409,050; however, it was later

revised upward to $517,820. As a result of several postponements,

preparation o f two PSR addenda, and re-schedulings, the last of

which was on the court's own motion and resulted from its

deter mination to consider further the possibility of an upward

departure (which never eventuated), Mills was not sentenced until

December 17, 1992.

That was some six weeks after the November 1 effective date of

§ 3E1.1's newly-added subsection (b), with its provision for a5

third 1-level decrease for timeliness o f acceptance of

responsibility. Presumably because it was such a recent addition

to the Guidelines, subsection (b) and the additional 1-level

reduction were never addressed in Mil ls' PSR or in either of the

two addenda thereto.

At sentencin g the court accepted the probation department's

amended calcu lation of Mills' offense level as follows: Base

offense level, 4; specific offense characteristics, +12; more than

minimal planning, +2; abuse of a position of public or private

trust, +2, for a sub-total of 20; giving effect to -2 for

acceptance of responsibility under § 3E1.1; producing a net offense

level of 18. Coupled with a criminal history level of I, the

resulting Guidelines range for imprisonment was 27-33 months. The

court sentenced Mills to 33 months in prison (the maximum under

that range) plus three years of supervised release (a lso the

maximum) and a special assessment of $50.

The sentencing hearing had commenced on December 3, 1992, but

was adjourned and continued until December 17, 1992. At both

sessions, the court and counsel for Mills engaged in extensive

dialogue on the contested issue of the quantum of victim loss to be

used in calculating Mills' offense level. Also discussed at length

was the court's consideration SQ eventually dro pped S Q of a possible

upward departure. In contrast, the matter of Mills' entitlement to

a 2-level decrease for acc eptance of responsibility under

subsection (a) of § 3E1.1 was never questioned by the court or the

government. And it was only as an after-thought, at the very end6

of the two-session sentencing hea ring, that subsection (b)'s

additional 1-level decrease in offense level was mentioned for the

first time. On the penultimate page of the transcript of the twosession sentencing hearing, the following brief colloquy took place

between the court and defense counsel:

COUNSEL: Your Honor, for purposes of the

record, was there a two-level or three-level

reduction for the acceptance of

responsibility?

THE COURT: He wouldn't be entitled to a

three-level because his offense level was not

16 or above. He can't get the extra--

COUNSEL: I believe the court set the offense

level at 18.

THE COURT: That's correct. He had received

acceptance of responsibility for two in the

presentence report--minus 2 in the presentence

report.

COUNS EL: Right. Would he be--I believe my

position is that he would be eligible for a 1-

level--

THE COURT: No. He gets another reduction of

one level if his plea is timely and the

offense level, except for acceptance of

responsibility, is 16 or above.

Only in that short exchange did t he court ever advert to the

a dditional 1-level reduction of subsection (b): The quoted

discussion was preceded by the court's unrelated statement to Mills

that appellate counsel and a record of the district court

proceedings would be provided at no cost if he could not pay for

them; and was followed by another unrelated statement by the court

to Mills concerning the Sentencing Guidelines and the statutory

maximum sentence.1 U nited States v. Watson

, 988 F.2d 544, 551 (5th Cir. 1993)

(citing United States v. Kinder

, 946 F.2d 362, 367 (5th Cir. 1991)

cert

. denied

, U.S. , 112 S.Ct. 2290, 119 L.Ed.2d 214

( 1992)), petition for cert. filed

, U.S.L.W. (U.S. July

29, 1993) (No. 93-5407).

2 U nited States v . United States Gypsum Co. , 333 U.S. 364,

395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

3 United States v. Matovsky , 935 F.2d 719, 721 (5th Cir.

1991) (citing 18 U.S.C. § 3742(e)).

4 United States Sentencing Commission, G uidelines Manual

, (Nov. 1992). Irrespective of the version of the guidelines in

effect at the time a defendant commits the acts constituting the

offense, or enters his plea, or is convicted thereon, he is to be

sentenced under the version in effect at the time of sentencing.

Only when that version would produce a more severe punishment, and

thus implicate the Constitution's proscription of ex post facto

7 II

ANALYSIS

A. Standard of Review

We review the sentenc ing court's finding on acceptance of

responsibility for clear error but with more deference than under

a pure clearly erroneous standard. 1 A finding is clearly erroneous

when, although so me evidence supports the decision, we are "left

with the definite and firm conviction that a mistake has been

committed. 2 "Review of sentences imposed under the guidelines is

limited to a determination whether the sentence was imposed in

violation of law, as a result of an incorrect application of the

sentencing guidelines, or was outside of the applicable guideline

range and was unreasonable." 3

B. Acceptance of Responsibility

Mills was sentenced under the version of the Guidelines that

became ef fective November 1, 1992. 4 The only aspect of hislaws, will an earlier version of the guidelines be applied at

sentencing; and such was not the case here. S ee, e.g.

, United

States v. Suarez , 911 F.2d 1016, 1021 (5th Cir. 1990).

5 U.S.S.G. § 3E1.1(b).

6 United States v. Tello , slip op.

.

7 Id. at

.

8 Id. at

.

9 Id. at

.

8 sentencing with which we are here concerned is acceptance of

responsibility under § 3E1.1, specifically the third or additional

1-level reduction in offense level for assisting authorities in the

investigation of the defendant's own misconduct, a 1992 provision

added as subsection (b). 5

In an opinion handed down in a parallel case today, we analyze

and explicate subsection (b) in excruciating detail, 6 finding that

subsection (b) establishes a tripartite test (the Tello test) for

entitlement to a third 1-level decrease: 1) The defendant must be

found by the sentencing court to be entitled to the basic 2-level

decrease under subsection (a); 2) his offense level, as determined

prior to application of the 2-level decrease under subsection (a),

must be 16 or greater; and 3) he must have assisted authorities by

taking either or both of the "steps" provi ded in subparagraph

(b)(1) and (2). 7 Once the defendant is found to have met all three

prongs of the Tello t est, 8 the district court is directed, under

the imperative of the final clause of subparagraph (b), to award

the additional 1-level decrease in offense level. 9

We shall consider initially the first and third prongs of the10 Id. at

.

9

Tello test, follow that with a brief examination of its second

prong, then conclude with a check for the possibility of harmless

error. For Mills, the first prong S Q the defendant's entitlement to

a 2-level decrease under subsection (a) SQ was met when the

sentencing co urt adopted the recommendation contained in the

Presentence Investigation Report (PSR) that Mills be awarded such

a decrease. The government did not object then or on appeal,

either to the PSR's recommendation or to the court's award of the

basic 2-level dec ease for acceptance of responsibility. We

therefor e need not further review the court's finding on that

issue, the significance of which for the instant analysis is that

the first prong of the Tello test was thereby satisfied.

The third prong of the Tello test SQ the defendant's assisting

authorities in the investigation or prosecution of his own

misconduct SQ is satisfied if he is found to have taken either of two

"steps," one defined in subsection (b)(1) ( t imely providing

complete i nformation to the government concerning his own

involvement in the offense), and the other, defined in subsection

( b)(2) ( t imely notifying authorities of his intention to enter a

plea of guilty sufficiently early in the proceedings to permit the

government to avoid preparing for trial and the court to allocate

its resources efficiently). 10

Nothing in the district court docket sheet or in any other

part of the record, particularly the transcripts of the plea and

sentencing hearings, advert to the subsection (b)(1) "step," i.e.,11 U.S.S.G. § 3E1.1, comment. (n. 6); Tello , slip op. at

.

10 the defendant's providing complete information to the government.

Neither is that step referred to in the PSR, presumably because it

was prepared before the effective date of subparagraph (b). Thus

we have no reason to consider the subsection (b)(1) step.

Not so, however, for the "step" defined in subsection (b)(2).

Although the PSR is equally silent as to this "step" S Q presumably

for the same reas on S Q the record is replete with historical facts

relevant to t his step's substance: the t imeliness of Mills'

notifying authorities of his intention to plead guilty, and the

assistance to authorities resulting therefrom, i.e., permitting the

government to avoid preparing for trial and permitting the court to

allocate its resources efficient ly, the latter being defined as

permitting the court to "schedule its calendar efficiently." 11

The statements of fact and statements of the case in the

appellate briefs of both the government and the defense, as well as

the record itself, establish beyond cavil that SQ even in this "fast

track" case SQ the third prong of the Tello test was met. As noted

earlier, Mills was charged on June 16, 1992, thereby terminating

his criminal activity, and was arraigned two weeks and two days

later. A mere 11 days after arraignment a tentative plea agreement

was reached by counsel for both sides, was initially found

unacceptable by Mills, but in a quick turnabout was accepted by

Mills within a matter of days. The government was so informed

sometime before July 30 SQ less than a month after arraignment, and11

only 1-1/2 to 2-1/2 weeks after counsel for the parties had reached

the tentative plea agreement.

Although not a requirement of Tello 's third prong, formal

entry of Mills' guilty plea occurred on July 30, 1992. That was

less than a month after his arraignment and only six weeks after he

was charged.

That Mills' early notification to authorities of his intention

to enter a plea of guilty permitted the government to avoid

preparing for trial and the court to sche dule its calendar

efficiently, is not t hrown open to question by the fact that on

July 6th, the Monday following the Thursday on which Mills was

arraigned, the court set a tentative trial date for August 3,

1992 SQ a scant four weeks following Mills' arraignment and six weeks

following his being charged. Whatever else might be observed about

such a fast track trial date setting, there can n o quibble about

its being tentative at best. Surely neither the prosecution nor

the defense could have proceeded to trial on August 3; in addition

to common sense and experience, support for this observation is

f ound in defense counsel's July 17 motion regarding briefing and

discovery. As noted in Mills' brief, "no witness list, exhibit

list, jury instructions or motions in limine were filed by either

the government or the defense. No motions other than the several

boilerplate discovery motions were filed." Under any realistic

analysis of the instant scheduling, Mills clearly took the step

defined in subsection (b)(2) when, sometime before July 30, he

notified authorities of his intention to enter a plea of guilty.12

For the first tim e on appeal, the government attempts to

subject this determination to doubt, and to question this

c onclusion. We find this argument unavailing. In this vein, we

find particularly significant the fact that, for all of its

protestations, the govern ment's brief never comes right out and

says that Mills' plea notification came too late to prevent the

government fr om preparing for trial. Neither does that brief

anywhere state that the government did in fact prepare for the

tentatively scheduled August 3 trial SQ a jury trial at that. We are

satisfie d that if it had thus prepared, we would have been so

informed by the government in its brief. The government reads the

court's statements in the above-quoted dialogue with defense

counsel as denying the additional 1-level reduction because Mills'

"plea was not timely." We shall see in our consideration of the

second prong of t he Tello test, however, that such a reading is

invalid. Read in context of the entire sentencing hearing, the

statement relied on by the government as a denial of the decrease

for lack of timeliness is shown to be nothing of the kind; rather,

the denial is seen to be grounded in offense level, pure and

simple.

Having observed that Mills satisfied the first and third

prongs of Tello 's tripartite test, we turn lastly to the second

prong to see whether Mills' offense level, determined prior to the

operation of subsection (a)'s 2-level reduction for acceptance of

responsibility, is "level 16 or greater." In the above-quoted

brief dialogue between the court and defense counsel, occurring as13

it did at the tail end of the second sentencing hearing and after

the court had announced that it would impose a prison term of 33

months, we fin d a clearly erroneous factual determination. The

court rejected out-of-hand any consid eration of the "three-level

reduction for the acceptance of responsib ility," which defense

counsel urged, "because [Mills'] offense level was no t 16 or

above." In this statement the court was simply mistaken.

Both the PSR and the court's own earlier discussion of Mills'

offense level make it abu ndantly clear that the level determined

and used by the probation department and by the court in

calculating Mills' sentencing range was 20 "prior to the operation

of subsection (a)" and 18 thereafter. In fact, when defense

counsel tried to question the court's denial further, the court cut

off the defense inquiry and correctly stated the rule that Mills

"gets another reduction of one level if his plea is timely and the

offense level, except for acceptance of responsibility, is 16 or

above." Although the court continued in its refusal to consider

that additional 1-level reduction, in so doing it imp licitly

reaffirmed its reliance on its initial, clearly erroneous finding

that Mills' "offense level was not 16 or above." (emphasis added.)

As Mills' offense level indisputably was above 16, both prior

to and after allowance for the ba sic 2-level reduction under

subsection (a), he obviously satisfied this prong of the Tello test

just as he had the first and third prongs. Having thus satisfied

all three prongs, Mills was entitled SQ as a matter of right SQ to the12 Tello , slip op.

.

13 Fed. R. Crim. P. 52(a); see also 18 U.S.C. § 3742.

14 third 1-level reduction in his offense level. 12 Given the mandatory

language of the final clause of subsection (b) SQ that the sentencing

court is to "decrease the offense level by 1 additional level" for

any defendant determined to be eligible therefor SQ t he court was

without any sentencing discretion whatsoe ver to deny Mills the

third 1-level decrease.

C. Harmless Error

In its appellate brief the government did not suggest that if

we should find an error in Mills' sentencing, we should find it to

be harmless. We nonetheless look for harmlessness on our own

motion. 13 And, when we do so in the instant case we find that the

court's sentencing error was not harmless.

Mills' sentencing range of 27 to 33 months was calculated on

the basis of an erroneously determined offense level of 18 and

criminal history category of I; and the 33-month pris on term

assessed by the court was the highest availab le under that

erroneously determined sentencing range. Had the proper offense

level of 17 and the same criminal history category of I been used

to calculate Mills' sentencing range, it would have been 24-30

months, obviously one in which the as sessed term of 33 months is

not included. Thus the court's error was not harmless.

Most of the time when that is the case we must vacate and1 4 U nited States v. Williams , 961 F.2d 1185, 1187 (5th Cir.

1992) (citing Williams v. United States

, U.S. , 112 S.Ct.

1112, 1121, 117 L.Ed.2d 341, 354-55 (1992)).

15 Williams , 112 S.Ct. at 1112.

16 Tello , slip op. at

.

15 remand for resentencing. 14 But not so here. When we examine the

instant record in a manner implicitly called for under the

methodology specified in Williams v. United States

, 15 we find that

the sentencing court left no doubt that, as far as it was

concerned, Mi lls should be incarcerated for the maximum term

permitted un der the applicable Guidelines range but without

implementation of an upward departure. In light of that

observation, we would be wasting judicial resources if we were to

vacate Mills' sentence and remand his case for what undoubtedly

would be a rote impos ition by the district court of the highest

term of incarceration permitted under the correct sentencing range

of 24-30 months. For purposes of the instant case, that is what is

meant by "same sentence." 16 So, instead of vacating and remanding

for resentencing by the district court, we reverse the term of

incarceration imposed by the district court, modi fy that term to

one of 30 months S Q the maximum within the correct sentencing

range SQ

and affirm Mills' sentence as thus modified. In all other

respects Mills' sentence as imposed by the district c ourt is

affirmed.

REVERSED and MODIFIED in part and, as thus modified, AFFIRMED.