1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-41061

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

ROBERTO SILVESTRE BRENES,

Defendant-Appellee.

Appeal from the United States District Court

For the Southern District of Texas, McAllen Division

April 27, 2001

Before GARWOOD, PARKER, and DENNIS, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

In this appeal from the district court’s sentence of Roberto

Brenes, the Government argues that the district court erred by

reducing the defendant’s sentence for acceptance of responsibility

and qualification under the safety valve provision. A jury

convicted Roberto Brenes of conspiracy to possess with intent to

distribute more than 1,000 k ilograms of marijuana and possession2

with intent to distribute 112 kilograms of marijuana in violation

of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1), and 18 U.S.C. § 2. The

Government presented evidence that Brenes purchased a van used in

a drug transaction, acquired a hotel room in which part of a

transaction took place, and arranged for a meeting between the

buyer and seller. For his part in the conspiracy, Brenes received

a percentage of the marijuana sale.

In a Presentence Investigation Report (“PSR”), the probation

officer concluded that Brenes was responsible for the sale of 112

kilograms of marijuana. The probation officer recommended a base

offense level of 26 with no adjustment for acceptance of

responsibility. The officer stated that Brenes put the Government

to its burden of proof by denying the essential factual elements of

g uilt and continued to assert his innocence during an interview

after his conviction. The officer also found that Brenes did not

qualify for a reduction of his total offense level under 18 U.S.C.

§ 3553, the safety valve provision. Based on an offense level of

26 and a criminal history category of I, the probation officer

recommended that Brenes serve from 63 to 78 months in prison.

At the sentencing hearing, the trial court initially asked why

Brenes had not taken advantage of the safety valve. The Government

stated that Agent Rodriguez of the Drug Enforcement Administration

met with Brenes, and Brenes continued to blame his involvement in

the conspiracy on another defendant. At this point, the court

realized that Brenes may not have accepted responsibility for his3

conduct and therefore would not qualify for a reduction in his

offense level under the sentencing guidelines. See U.S.S.G. §

3E1.1(a) (1998). After the judge repeatedly questioned Brenes

about his responsibility for the crime, Brenes reaffirmed that he

was not guilty. He claimed that he purchased the van only to

transport musical instruments for his band, and that he did not

intend for the van or the hotel room to be used in the conspiracy.

The judge then informed Brenes that he could not reduce the

sentence unless Brenes was willing to accept responsibility for his

part in the c rime. Brenes then admitted that he arranged the

meeting between the buyer and seller, but continued to deny that he

participate d in the transaction. In response to the judge’s

repeated warnings that ref u sal to accept responsibility would

result in an extended sentence, Brenes stated, “Well, I would take

back my word if it’s a benefit for me. I would agree that I was

involved with it. . ..”

Once Brenes admitted his guilt, the judge ordered a recess so

that Brenes could meet with Agent Rodriguez. After the recess, the

court questioned Agent Rodriguez and found that Brenes provided

suff icient information to avail himself of the safety valve

provision. The court subtracted two points for the safety valve

and another two points for acceptance of responsibility. The court

calculated a total offense level of 22, sentenced Brenes to serve

t wo concurrent 41-month prison terms followed by three-year s of4

supervised release, and ordered a $200 special assessment.

DISCUSSION

The Government argues that the district c ourt erred in

reducing Brenes’ sentence. The Government claims that Brenes did

not accept responsibility and failed to qualify for a reduction of

his offense level under the safety valve provision. We review the

district court’ s factual determinations for clear error and the

court’s interpretations of law de novo

. S ee United States v.

Miller , 179 F.3d 961, 963-64 (5th Cir. 1999).

I. Acceptance of Responsibility

A defendant is entitled to a reduction of his offense level if

he “clearly demonstrates acceptance of responsib i lity for his

offense.” U.S.S.G. § 3E1.1. “In rare situations a defendant . .

.” who puts the Government to its burden of proof at trial “. . .

may clearly demonstrate an acceptance of responsibility for his

criminal conduct.” U.S.S.G. § 3E1.1 comment (n.2). “In each

instance, however, a determination that a d efendant has accepted

responsibility will b e based primarily upon pre-trial statements

and conduct.” Id. A district court’s determination of whether a

defendant is entitled to a reduction of his offense level for

acceptance of responsibility is reviewed with even more deference

than the pure “clearly erroneous” standard. See United States v.

Flucas

, 99 F.3d 177, 180 (5th Cir. 1996); United States v. Bermea

,

30 F.3d 1539, 1577 (5th Cir. 1994), ce rt. denied , 513 U.S. 1156,5

514 U.S. 1097 (1995). We will overturn the district court’s

conclusion that Brenes ac cepted responsibility only if it is

without foundation. S ee United States v. Brace

, 145 F.3d 247, 264

(5th Cir. 1998) (en banc).

The record on appeal is d evoid of any attempt by Brenes to

accept responsibility for his criminal conduct before or af ter

trial. Brenes did not admit his guilt to the probation officer who

prepared the PSR, and he continued to deny his guilt when

questioned by the jud ge at the beginning of the hearing. Brenes

admitted his responsibility only after the judge warned him that he

could receive a greater sentence if he continued to deny his

involvement in the drug transaction. After the judge warned him of

the consequences of refusi n g to accept responsibility, Brenes

stated, “Well, I would take my word back if it’s a benefit to me.”

Even under the deferential standard that applies to a district

court’s decision, we do not think that Brenes accepted

responsibility in the manner required by the sentencing guidelines.

As the comments suggest, only in rare situations should a defendant

who put the Government to its burden of proof be afforded the

benefit of ac cepting responsibility. A defendant cannot accept

responsibility within the meaning of the sentencing guidelines if

his acceptance is the product of repeated warnings by the judge at

the sentencing hearing. We therefore find that the district

court’s conclusion concerning Brenes’ acceptance of responsibility6

is without foundation.

II. The Safety Valve Provision

The safety valve provision requires a court to impose the

guideline sentence, as opposed to a mandatory minimum sentence, if

the defen dant provided the Government all information that the

defendant knows concerning the “offenses that were part of the same

course of conduct or of a common scheme or plan.” 18 U.S.C. §

3553(f); U.S.S.G. § 5C1.2 (1998). The purpose of the safety valve

is to “allow less culpable defendants who fully assist [] the

Government to avoi d the statutory mandatory minimum sentences.”

United States v. Rodriguez

, 60 F.3d 193, 195 (5th Cir. 1995). The

safety valve requires the defendant to provide information to the

Government “not later than the time of the sentencing hearing.” 18

U.S.C. § 3553(f)(5).

The distr ict court called for a recess during Brenes’

sentencing h earing in order for Brenes to meet with Agent

Rodriguez. After the recess, the court interviewed Agent Rodriguez

and determined that Brenes qualified for the benefits of the safety

valve. The Government argues that the phrase “not later than the

time of the sentencing hearing” requires a defendant to cooperate

with officials prior to the commencement of the sentencing hearing.

Brenes contends that the phra se means before or during the

sentencing hearing.

The Seventh Circuit addressed this issue in United States v.1 Brenes’ argues that the testimony of a police officer at trial

supports his en titlement to the benefits of the safety valve. A

defendant bears the burden of demonstrating that the safety valve

applies. S ee Miller

, 179 F.3d at 964. The record indicates that,

at the commencement of the sentencing hearing, neither the

probation officer who prepared the PSR, Brenes’ own lawyer, nor the

district judge believed that the officer’s testimony would support

a reduction of B renes’ total offense level. Given the fact that

Brenes did not accept responsibility and failed to cooperate after

trial, the officer’s testimony alone does not support the district

court’s reduction of his sentence.

7 Marin

, 144 F.3d 1085, 1091-92 (7th Cir. 1998), cert. denied

, 525

U.S. 1184 (1999). The court concluded that, based on the “language

in the statute, t he policy underlying such language, and the

legislative history of the safety valve,” defendants must disclose

information by the time of the c ommencement of the sentencing

hearing. I d. at 1092. We agree with the Seventh Circuit’s

practical approach and conclude that the district court erred as a

matter of law by reducing Brenes’ total offense level for

information he revealed to Agent Rodriguez during the sentencing

heari ng. 1 We therefore vacate the district court’s sentence and

rem a nd for re-sentencing with instructions that Brenes’ total

offense level not be redu ced for acceptance of responsibility or

for qualification under the safety valve provision.

VACATED and REMANDED