FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 9, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-15717

Non-Argument Calendar

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D. C. Docket No. 04-00111-CR-FTM-29-SPC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

EDUARDO TAMAYO OLIVEROS, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

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(June 9, 2006)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

Eduardo Tamayo Oliveros appeals his 120-month sentence, which was

imposed following his guilty plea to conspiring to possess with intent to distribute

more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
 Oliveros’s plea agreement contained an appeal waiver in which he waived his right to

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appeal the sentence, including on the ground that the district court had erred in calculating the

Guidelines range, except on certain specified grounds. The government states that it has not filed

a motion to dismiss this appeal because it is arguable that Oliveros’s claim is not a challenge to his

sentence, but rather a challenge to the district court’s procedures at the sentencing hearing, and

because it is unclear whether Oliveros seeks a new sentencing hearing, a revocation of his plea

agreement, or some other form of relief. We give appellant the benefit of the doubt and address the

merits of his claim, rather than dismissing the appeal based on the waiver, because: (1) there is an

argument to be made that the appeal does not fall within the express terms of the waiver, as

conceded by the government; (2) the government does not seek application of the waiver and has

already expended the resources to brief the case on the merits; and (3) application of the waiver

would not be outcome-determinative.

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841(b)(1)(A)(ii), 846. For the first time on appeal, Oliveros argues that the district

court erred by giving him notice that his continued objection to the amount of

drugs attributable to him, an amount to which he had already agreed in his written

plea agreement, would result in the court’s denial of an offense-level adjustment 1

for acceptance of responsibility under U.S.S.G. § 3E1.1. Oliveros suggests that

the district court’s notice impaired his Fifth and Sixth Amendment rights. After

careful review, we affirm.

We review objections to sentencing issues raised for the first time on appeal

for plain error. See United States v. Harness, 180 F.3d 1232, 1234 (11th Cir.

1999). To prevail under this standard, Oliveros must show “(1) error, (2) that is

plain, and (3) that affects substantial rights.” United States v. Rodriguez, 398 F.3d

1291, 1298 (11th Cir.) (internal quotations and citations omitted), cert. denied, 125

S. Ct. 2935 (2005). “If all three conditions are met, an appellate court may then
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exercise its discretion to notice a forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(quotation and citation omitted). 

Prior to sentencing, Oliveros signed a plea agreement in which he admitted

that an element of the offense was “[t]hat the object of the unlawful plan was to

possess with intent to distribute more than 5 kilograms of cocaine as charged.”

Moreover, at the plea colloquy, Oliveros described his participation in the

underlying conspiracy, as follows: “I’m guilty. I talked to the CS [confidential

source]. . . . And I was the one who talked to the CS to get them together and carry

out the transaction. That’s why I am guilty.” He further explained, “The quantity

was . . . what they actually had were three kilos. But I am guilty because it goes

back to the fact that I talked first about ten, and then, later, five. But what we had

was those three kilos.” 

According to the presentence investigation report (“PSI”), Oliveros offered

to sell five kilograms of cocaine to a CS. During a recorded telephone

conversation, when the CS indicated that he was interested in purchasing ten

kilograms, Oliveros told the CS to “get ready” for the ten, in anticipation that it

would be acquired. In another recorded telephone conversation, Oliveros told the

CS that he was ready to deliver the first five kilograms, and that the other five
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kilograms would be ready for delivery in the upcoming week. After meeting with

the CS, Oliveros canceled the transaction, refusing to finalize delivery and

attempting to leave the area. Oliveros subsequently was arrested and three

kilograms of cocaine were found in a hidden storage area in the “engine block”

area (under the hood) of the vehicle he was driving.

The PSI recommended a base offense level of 32 based on Oliveros’s

responsibility for ten kilograms of cocaine, U.S.S.G. § 2D1.1(c)(4), and a threelevel reduction for acceptance of responsibility, U.S.S.G. §§ 3E1.1(a), 3E1.1(b).

With an adjusted offense level of 29 and a criminal history category II, and taking

into consideration the 120-month mandatory minimum of 21 U.S.C. §

841(b)(1)(A)(ii), Oliveros faced a Guidelines sentencing range of 120 to 121

months’ imprisonment. 

Oliveros objected to the assignment of responsibility for ten kilograms of

cocaine, rather than three. Prior to the sentencing hearing, the district court issued

a Notice to Counsel Regarding Sentencing (“Notice”), which informed Oliveros

that he “should be prepared to discuss at the sentencing hearing why [he] should

not lose the acceptance of responsibility deductions for his false or frivolous

objection[] to the quantity of cocaine being at least the quantity to which he pled

guilty.” The Notice cited U.S.S.G. § 3E1.1, comment 1(a), which provides the
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following: “a defendant who falsely denies, or frivolously contests, relevant

conduct that the court determines to be true has acted in a manner inconsistent with

acceptance of responsibility.” At the sentencing hearing, Oliveros withdrew the

objection. The district court imposed a 120-month term of imprisonment. This

appeal followed.

Oliveros now argues that the district court’s issuance of the Notice infringed

on his right to argue at the sentencing hearing that he was responsible for an

amount (three kilograms) that was below the amount to which he agreed in his plea

agreement and at the plea colloquy. This argument has no merit since it is wellsettled that a district court may “deny a defendant a reduction under § 3E1.1 based

on conduct inconsistent with acceptance of responsibility, even when that conduct

includes the assertion of a constitutional right.” United States v. Smith, 127 F.3d

987, 989 (11th Cir. 1997) (en banc) (emphasis added) (upholding the denial of an

acceptance of responsibility reduction based on the defendant’s objections to the

PSI). This is so because a defendant’s false denial of relevant conduct is

“inconsistent with the acceptance of responsibility.” United States v. Hernandez,

160 F.3d 661, 667-68 (11th Cir. 1998). Thus, based on Oliveros’s objection as to

drug quantity, even if the objection was based on a constitutional right, the district

court was free to deny an acceptance-of-responsibility reduction. If the district
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court would not have erred by denying the acceptance of responsibility reduction

altogether, we fail to see how the court committed plain error by warning Oliveros

that he could lose the reduction, thereby giving Oliveros the opportunity to

withdraw the objection and retain the benefit of the reduction. Accordingly, we

affirm.

AFFIRMED.