UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 94-30167

Summary Calendar

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RENE DIAZ,

Defendant-Appellant.

* * * * * * * * *

__________________

No. 94-30168

Summary Calendar

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PAUL SOLIS,

Defendant-Appellant.

______________________________________________

Appeals from the United States District Court for the

Eastern District of Louisiana

______________________________________________

(November 25, 1994)

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

In this consolidated appeal, defendants-appellants Rene Diaz2

(Diaz) and Paul Solis (Solis) complain of the sentence imposed

u n der the United States Sentencing Guidelines following their

convictions on pleas of guilty to charges of conspiring to possess

with the intent to distribute cocaine hydrochloride contrary to 21

U.S.C. §§ 841(a) and 846. Both defendants insist that the district

court erred in not awarding any credit for acceptance of

responsibility under section 3E1.1 of the Guidelines. For the

reasons that follow, we affirm.

Facts and Proceedings Below

I n cooperation with a confidential informant (CI), United

States Custom s agents seized thirty-one kilograms of cocaine

hydrochloride from the M/V Balsa 43 when it arrived in New Orleans

from Colombia on May 25, 1993. That evening, after giving agents

the telephone numbers of the intended recipients of the cocaine,

the CI agreed to make a controlled delivery. At approximately

5:40 p.m., the CI called Diaz, one of the intended recipients.

Diaz agreed to travel from Miami to New Orleans the next day to

purchase 8 kilograms of cocaine for $20,000. Diaz also indicated

that he would return later to New Orleans to purchase twelve more

kilograms.

The next day, May 26, 1993, Diaz arrived in New Orleans with

Solis and two other people. Shortly after their arrival, Diaz and

Solis (Defendants) went to the agreed-upon site for the purchase.

When the CI arrived, Solis approached him. Then Diaz joined Solis,

and together they led the CI to their van. Once there, Defendants

took the cocaine but refused to pay for it. They forced the CI

from the van and fled the scene. Five hours later, customs agents3

intercepted two vans headed for Miami, one driven by Solis and the

other by Diaz. In the van driven by Solis, the agents discovered

$ 20,000. On the side of the road nearby, agents found eight

kilograms of cocaine wrapped in the same packaging used for

delivery by the CI.

On July 16, 1993, an indictment returned against Defendants

charged them with one count of conspiracy to possess with the

intent to distribute eight kilograms of cocaine hydro chloride in

violation of 21 U.S.C. §§ 841(a)(1) and 846. After some delay, the

trial was scheduled for November 15, 1993. On that morning, just

before trial, Defendants entered into plea negotiations. As a

result, the government filed a s uperseding information charging

Defendants with the same crime but omitting reference to the amount

of cocaine specified in the indictment. Def endants then pleaded

guilty to the charge. The district court accepted the pleas and

ordered presentence investigation reports (PSRs).

Diaz's PSR recommended awarding credit for accept a nce of

responsibility because "he acknowledges that he traveled from Miami

to New Orleans to do a cocaine transaction." Solis's PSR

recommended not awarding the credit because "he denies having any

k nowledge that the purpose of the trip to New Orleans was to

purchase cocaine" and because "[h]e denies knowing that a drug deal

was occurring pri or to his meeting with the government informant

and further indicates that he was no more than an obs erver." At

the sentencing hearing on March 9, 1994, the district court

informed Defendants of its decision not to award either of them any

credit for accepting responsibili ty. At that time, the district4

court based its decision on two facts: (1) Defendants' delay

before pleading guilty and (2) Defendants' failure to tell the

whole truth. When Defendants objected, the district court made

clear that its decision was firm but offered Defendants an

opportunity to consider w ithdrawing their pleas. Both Diaz and

Solis declined.

The district court then sentenced Diaz, who had a total

offense level of 32 and a criminal history category of III, to 180

months in prison and 3 years' supervised release. The court

sentenced Solis, who had a total offense level of 32 and a criminal

history categ ory of II, to 150 months in prison and 3 years'

supervised release. After the hearing, in its written reasons for

the sentence, the district court indicated that Defendants' prior

felony convictions also supported its decision not to allow credit

for acceptance of responsibility.

After Def endants filed timely notices of appeal, this Court

granted their motion to consolidate the two cases. As their only

issue on appeal, Defendants contend that the district court erred

in not awarding them credit for acceptance of responsibility.

Finding no reversible error in either case, we affirm.

Discussion

Whether the district court correctly applied the Guidelines is

a question of law subject to de novo review

. United States v.

Howard , 991 F.2d 195, 199 (5th Cir.), cert. denied , 114 S.Ct. 395

(1993). Under U.S.S.G. § 3E1.1, Defendants must prove they are

entitled to credit for acceptance of responsibility. Because the

district court "is in a unique position to evaluate a defendant's1 A one-point credit under subsection (b) is available if the

total offense level is sixteen or greater and if the defendant

has either "timely provid[ed] complete information to the

government concerning his own involvement in the offense" or

timely notified authorities of his intention to plead guilty.

U.S.S.G. § 31E.1(b)(1).

5 acc eptance of responsibility[,]" we review the district court's

underlying factual findings and ultimate determinat ion under a

standard even more deferential than clear error. U.S.S.G. § 3E1.1,

comment (n. 5); United States v. Brown

, 7 F.3d 1155, 1162 (5th Cir.

1993).

Section 3E1.1(a) of the Guidelines allows a two-point

reduction in the total offense level when a defendant "clearly

demonstrates acceptance of responsibility for his offense."

U.S.S.G. § 3E1.1(a). "The mere entry of a guilty plea, however,

does not entitle a defend ant to a sentencing reduction for

acceptance of responsibility as a matter of right." U nited States

v. Shipley

, 963 F.2d 56, 58 (5th Cir.) (per curiam), cert. denied

,

113 S.Ct. 348 (1992). Only a defendant who qualifies for this

downward adjustment under section 3E1.1(a) may obtain an additional

one-point credit under subsection (b). 1 In short, a defendant not

awarded a two-point r eduction under subsection (a) is ineligible

for a single-point reduction under subsection (b). Because, in

this case, the court decided not to award either defendant any

points for acceptance of responsibility, only subsection (a) is at

issue.

D e fendants assert that the district court misapplied the

Guidelines. In particular, Defendants claim the district court

erred as a matter of law in basing its decision i n part on6

Defendants' criminal history and on the timeliness of their pleas.

With respect to the first contention, we agree with Defendants that

the district court erred in factoring their prior offenses into its

dec ision not to grant credit for acceptance of responsibility.

While the bare fact that Defendants had prior felony convictions is

relevant to the calculation of a criminal history category, it has

no independent bearing on whether De fendants had accepted

responsibility for the crime charged.

The district cour t's consideration of an irrelevant factor,

however, is "not fatal if there is some other reason to be found

that supports" the court's decision: "We may always affirm a

district court's ruling, made for an invalid reason, if we are

shown or can find a valid reason to suppo rt the ruling." U nited

States v. Tello , 9 F.3d 1119, 1128 (5th Cir. 1993). Here, we are

convinced that the reference to prior convictions, first appearing

in the written reasons composed after the sentencing hearing, is no

more than an afterthought. The two other factors (timeliness and

truthfulness), on the other hand, were the sole expressed bases for

the decision at the actual time of sentencing. Because the

district court's decision was independently supported by two other

factors, and because we conclude that there is no rea sonable

possibility that the district court would have granted any credit

for acceptanc e of responsibility had it never considered the

previous convictions in that connection, we hold that the court's

post hoc reference to prior convictions as also supportive of its

decision was harmless error in this case.

Defendants also challenge the district court's consideration2 In arguing that a district court cannot consider timeliness

under subsection (a), Defendants rely on the following portion of

United States v. Tello , 9 F.3d 1119 (5th Cir. 1993):

"We are unable to read anything into § 3E1.1

or into Tello's interpretation of it, that

'ties acceptance of responsibility to the

timeliness of the entry of the plea.' To the

contrary, the element of timeliness is

nowhere to be found in any aspect of the

basic 2-level decrease . . . ." Id. at 1127.

Initially we note that, because Tello dealt with section 3E1.1(b)

only , any reference in the opinion to subsection (a) was mere

dicta, which we refuse to interpret contrary to the express terms

of the application notes to section 3E1.1. In any event,

however, this dicta is not inconsistent with our holding today.

The passage quoted was in response to the government's contention

that "tieing" acceptance of responsibility to timeliness "would

obligate every district court to automatically reduce offense

levels by three whenever a prompt guilty plea was made." Id. at

1127 (citation and emphasis omitted). Recognizing the flaw in

this logic, the panel merely pointed out that under subsection

(a), unlike subsection (b), timeliness is not an indispensible

element of the credit and thus not a factor the court must be

governed by.

3 We do not read the statements of the district court to mean,

7 of timeliness. According to Defendants, whether a plea was timely

relates only to the one-point award under subsection (b) and cannot

relate to the two-point reduction under subsection (a). We

disagree. While the terms of subsection (b) m andate consideration

of timeliness, the terms of subsection (a) do not forbid it.

Indeed, the consideration of timeliness is expressly allowed. The

application notes to section 3E1. 1(a) state, "In determining

whether a defendant qualifies under subsection (a), appropriate

considerations include, but are not limited to, the following:

. .

. (h) the timeliness of the defendant's conduct in manifesting the

acceptance of responsibility." 2 We therefore find no error in the

district court's consideration of this factor. 3as Defendants suggest, that a defendant must accept

responsibility at the moment of arrest to qualify for credit

under section 3E1.1(a). The identified comments of the court at

the sentencing hearing reflect a concern not so much with the

delay per se but with the reasons for the delay: "To me,

acceptance of responsibility is, when you are caught, not until

you see that you are in a corner and you don't have anywhere else

to go." Elsewhere, the court's comments relate only to the lastminute timing of the pleas.

8 Finally, Defendants contend that the district court committed

clear error in concluding, on these facts, that Solis and Diaz had

not clearly accepted responsibility. As mentioned earlier, at the

sentencing hearing the district court based its decision on both

the timeliness and truthf ulness of Defendants. With respect to

timeliness, both parties agree that Defendants waited until the

morning of trial to enter plea negotiations, thereby denying all

involvement u ntil almost six months after their arrest. S ee

Wilder

, 15 F.3d at 1299 (decision not to award credit under section

3E1.1(a) based in part on the defendant's failure to plead guilty

until the "eve of trial"). Given this delay, the district court

did not err in finding that Defendants were untimely in

"manifesting the acceptance of responsibility."

The court also found that Defendants had failed to acknowledge

the full extent of the charged conspir acy. Acceptance of

responsibility hinges on a defendant's "truthfully admitting the

conduct comprising the offense(s) of conviction" and demonstrating

"'sincere contrition' regarding the full extent of . . . criminal

conduct." I d. (emphasis added). Diaz and Solis both maintained

that Solis knew nothing of the drug transaction before meeting with

the CI. In his written statement, Solis portrayed himself, in the9

words of the PSR, as an "observer" more than an active participant

in a criminal conspiracy. The district court was entitled to

discredit this assertion, considering that Solis was the first to

appro a ch the CI at the purchase site and the one whose van

contained both the money and the drugs on the way back to Miami.

Diaz, too, while acknowledging his intention to drive to New

Orleans to purchase drugs, persistently discounted the existence of

a conspira torial agreement with Solis. These facts justify the

district court's finding that Diaz and Solis failed to come clean

on the full extent and nature of their charged conspiracy.

Because these factual determinations are not clearly

erroneous, the district court acted well within its broad

discretion in concluding that Defendants had failed to demonstrate

a clear acceptance of responsibility. Accordingly, Defendants were

not entitled to the two points credit under subsection (a) nor, a

fortiori , the single point credit under subsection (b).

Conclusion

The judgment of the district court is

AFFIRMED.