United States v. Espinoza-Cano

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-10339

Plaintiff-Appellee,

v.  D.C. No.

CR-04-0379 SI

JUAN ESPINOZA-CANO,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Northern District of California

Susan Y. Illston, District Judge, Presiding

Argued and Submitted

April 7, 2006—San Francisco, California

Filed August 8, 2006

Before: David R. Thompson and Consuelo M. Callahan,

Circuit Judges, and Jeffrey T. Miller,* District Judge.

Opinion by Judge Miller

*The Honorable Jeffrey T. Miller, United States District Judge for the

Southern District of California, sitting by designation.

9049

UNITED STATES v. ESPINOZA-CANO 9053

COUNSEL

Josh Cohen, Assistant Federal Public Defender, San Fran-

cisco, California, for the defendant-appellant.

Robert David Rees, Assistant United States Attorney, San

Francisco, California, for the plaintiff-appellee.

9054 UNITED STATES v. ESPINOZA-CANO

OPINION

MILLER, District Judge:

Defendant Juan Espinoza-Cano appeals his conviction and

sentence in the district court for illegal re-entry into the

United States following deportation, in violation of 8 U.S.C.

§ 1326(b). This appeal requires us to address two provisions

of the advisory U.S. Sentencing Guidelines (“Guidelines”).

Under section 2L1.2(b)(1)(C) of the Guidelines, the district

court, when calculating the Guideline range for a § 1326 con-

viction, must enhance the defendant’s offense level if the

defendant was convicted of an aggravated felony prior to the

deportation. We examine whether the district court, in deter-

mining if a prior conviction qualifies as an aggravated felony,

may properly consider, in light of Shepard v. United States,

544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), a

police report that has been incorporated by reference into the

criminal complaint underlying the prior conviction and that

recites a mutually agreed-upon statement of facts. We also

address for the first time the standard of review a district court

must apply to a prosecutor’s decision not to file a motion pur-

suant to section 3E1.1(b) of the Guidelines requesting that the

defendant receive a third level reduction for acceptance of

responsibility.1 These are important considerations because, as

1

Section 3E1.1 provides:

(a) If the defendant clearly demonstrates acceptance of responsi-

bility for his offense, decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease under subsection (a),

the offense level determined prior to the operation of subsection

(a) is level 16 or greater, and upon motion of the government

stating that the defendant has assisted authorities in the investiga-

tion or prosecution of his own misconduct by timely notifying

authorities of his intention to enter a plea of guilty, thereby per-

mitting the government to avoid preparing for trial and permitting

the government and the court to allocate their resources effi-

ciently, decrease the offense level by 1 additional level.

U.S. Sentencing Guidelines Manual § 3E1.1 (2004).

UNITED STATES v. ESPINOZA-CANO 9055

we have already said, the Guidelines are the “starting point”

for a district court in determining what constitutes a fair, just,

and reasonable sentence. United States v. Cantrell, 433 F.3d

1269, 1280 (9th Cir. 2006).

We affirm the district court’s finding that Espinoza-Cano’s

prior conviction was a prior aggravated felony. In so doing,

we approve of the district court’s consideration of a police

report incorporated into a criminal complaint in making that

finding. We also hold that the proper standard for a district

court’s review of a prosecutor’s decision not to file a motion

under section 3E1.1(b) is the same standard for review of a

decision to file a substantial assistance motion under section

5K1.1 of the Guidelines: The government may not refuse to

file a motion on the basis of an unconstitutional motive or for

reasons not rationally related to a legitimate government inter-

est.2

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2002, Espinoza-Cano, a citizen of Mexico, was residing

in the United States. On May 30, 2002, he and an accomplice

were arrested for stealing several items, totaling more than

$400, from an Albertson’s grocery store in Mountain View,

California. The police report from the incident was attached

to, and incorporated by reference into, the criminal complaint

as the statement of probable cause. Espinoza-Cano pleaded

guilty to grand theft, in violation of §§ 484-487(a) of the Cali-

fornia Penal Code. At the taking of his plea, counsel stipu-

lated that there was a factual basis for the plea as set forth in

the police report. Espinoza-Cano was sentenced to twelve

months imprisonment and, on February 6, 2003, was deported

to Mexico.

2

Section 5K1.1 provides that “[u]pon motion of the government stating

that the defendant has provided substantial assistance in the investigation

or prosecution of another person who has committed an offense, the court

may depart from the guidelines.” U.S. Sentencing Guidelines Manual

§ 5K1.1 (2004).

9056 UNITED STATES v. ESPINOZA-CANO

Following his deportation, Espinoza-Cano re-entered the

United States and, again, was arrested for grand theft. Federal

agents were notified of his unlawful presence and, on Novem-

ber 17, 2004, a grand jury indicted Espinoza-Cano on the

charge that he was a previously deported alien found in the

United States, in violation of 8 U.S.C. § 1326.

Espinoza-Cano filed a motion to dismiss the indictment. He

argued that the indictment was fatally flawed under Apprendi

v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d

435 (2000), and United States v. Tighe, 266 F.3d 1187 (9th

Cir. 2001), because his prior deportation had not been deter-

mined by a jury and because the indictment failed to allege a

prior aggravated felony. Although Espinoza-Cano recognized

that, under Almendarez-Torres v. United States, 523 U.S. 224,

118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the prior aggravated

felony conviction did not constitute an essential element

under § 1326, he raised the issue to preserve it for appellate

review.

The district court denied the motion to dismiss the indict-

ment and set a trial date. Shortly thereafter, counsel for

Espinoza-Cano informed the government that Espinoza-Cano

wished to enter a conditional guilty plea, pursuant to Rule

11(a)(2) of the Federal Rules of Criminal Procedure, in order

to retain his right to appeal the district court’s denial of his

motion to dismiss the indictment. The government refused to

consent to the conditional plea, asserting that it believed a

conditional plea “was not appropriate in these circumstances.”

Presumably to achieve the same result as a conditional plea,

Espinoza-Cano notified the government that he waived his

right to a trial by jury and would stipulate to all facts neces-

sary to establish his guilt at a bench trial. The district court,

describing the bench trial as a “semi-modified Rule 11 collo-

quy” or “slow plea,” found Espinoza-Cano guilty.

The Presentence Report (“PSR”) recommended a thirty-

seven-month custodial sentence. The calculation was predi-

UNITED STATES v. ESPINOZA-CANO 9057

cated on a base offense level of eight (section 2L1.2(a)), with

an upward adjustment of eight levels because Espinoza-Cano

had been previously deported after a conviction for an aggra-

vated felony (section 2L1.2(b)(1)(C)), and a downward

adjustment of two levels for acceptance of responsibility (sec-

tion 3E1.1), for a total offense level of fourteen. The PSR rec-

ommended that, in the absence of a motion from the

government, and because Espinoza-Cano put the government

to its burden of proof at a stipulated bench trial, Espinoza-

Cano should not be awarded a third level reduction for accep-

tance of responsibility under subsection (b) of section 3E1.1.

The PSR also calculated Espinoza-Cano’s criminal history to

be a category VI, which, when combined with a total offense

level of fourteen, yielded a Guideline range of thirty-seven to

forty-six months.

Espinoza-Cano objected to the recommended Guideline

range in the PSR, arguing that he had not been convicted of

an aggravated felony, and, therefore, should not have been

given the eight point increase in his offense level. He also

argued that he was entitled to an additional reduction in his

offense level for acceptance of responsibility under section

3E1.1(b), notwithstanding the decision of the government not

to file a motion. The district court overruled Espinoza-Cano’s

objections and sentenced him to thirty-seven months’ impris-

onment.

On appeal, Espinoza-Cano argues that (1) the government

failed to plead and prove the existence of an aggravated fel-

ony; (2) judicially noticeable documents did not establish that

his prior conviction was, in fact, an aggravated felony under

the modified categorical approach of Taylor v. United States,

495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); and

(3) the district court erred in not reducing his offense level by

an additional level for acceptance of responsibility based on

his having timely notified authorities of his intent to plead

guilty.

9058 UNITED STATES v. ESPINOZA-CANO

II. STANDARD OF REVIEW

Whether a prior conviction qualifies as an aggravated fel-

ony under the Guidelines is a question of law reviewed de

novo. United States v. Hernandez-Valdovinos, 352 F.3d 1243,

1246 (9th Cir. 2003). A district court’s decision whether to

reduce a defendant’s sentence for acceptance of responsibility

is reviewed for clear error. United States v. Cortes, 299 F.3d

1030, 1037 (9th Cir. 2002). “[W]hether the district court mis-

apprehended the law with respect to the acceptance of respon-

sibility reduction” is reviewed de novo. Id. The district court’s

denial of a motion to dismiss an indictment for failure to

plead an essential element of an offense is reviewed de novo.

See United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032

(9th Cir. 2001).

III. ANALYSIS

A. Pleading an Aggravated Felony in the Indictment

[1] Espinoza-Cano argues that the fact of his prior convic-

tion for an aggravated felony must have been pled in the

indictment and proven to a jury beyond a reasonable doubt.

This argument is foreclosed by Almendarez-Torres, 523 U.S.

224, 118 S.Ct. 1219, which remains binding precedent on this

court. United States v. Weiland, 420 F.3d 1062, 1079, n.16

(9th Cir. 2005); United States v. Quintana-Quintana, 383 F.3d

1052, 1053 (9th Cir. 2004); United States v. Pacheco-Zepeda,

234 F.3d 411, 412 (9th Cir. 2000).

B. The Prior Felony Conviction

[2] Pursuant to section 2L1.2(b)(1)(C) of the Guidelines,

the offense level for a defendant convicted of a violation of

8 U.S.C. § 1326 is increased by eight levels if the defendant

was deported after being convicted of an aggravated felony.3

3

In this case, the prior conviction is not for a more serious felony which,

under section 2L1.2(b)(1)(A) or (B), would result in an increase in the

offense level by sixteen or twelve, respectively. U.S. Sentencing Guide-

lines Manual § 2L.1.2(b)(1) (2004).

UNITED STATES v. ESPINOZA-CANO 9059

The question is whether Espinoza-Cano’s conviction for

grand theft under § 487(a) of the California Penal Code quali-

fies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G),

which classifies a theft offense for which the term of impris-

onment is at least one year as an aggravated felony.

There exist two approaches to determine whether a prior

conviction is an aggravated felony, the “categorical approach”

and the “modified categorical approach,” both of which were

sanctioned in Taylor. Taylor, 495 U.S. at 602, 110 S.Ct. at

2160. An analysis of Espinoza-Cano’s prior conviction leads

us to conclude, and the parties agree, that it does not qualify

as an aggravated felony under the categorical approach.

[3] Under the categorical approach, “federal courts do not

examine the facts underlying the prior offense, but ‘look only

to the fact of conviction and the statutory definition of the

prior offense’ ” and compare it to the generic definition of the

offense. United States v. Corona-Sanchez, 291 F.3d 1201,

1203 (9th Cir. 2002) (en banc) (quoting Taylor, 495 U.S. at

602, 110 S.Ct. at 2143); see also Taylor, 495 U.S. at 598, 110

S.Ct. at 2158 (concluding that Congress meant to import the

generic definitions of offenses into sentencing enhancement

statutes). The generic definition of a theft offense for purposes

of § 1101(a)(43)(G) is “a taking of property or an exercise of

control over property without consent with the criminal intent

to deprive the owner of rights and benefits of ownership, even

if such deprivation is less than total or permanent.” Corona-

Sanchez, 291 F.3d at 1205 (quoting Hernandez-Mancilla v.

INS, 246 F.3d 1002, 1009 (7th Cir. 2001)). Because Califor-

nia’s theft statute criminalizes more than just the taking of

property, Espinoza-Cano’s prior conviction for grand theft is

not categorically a conviction for an aggravated felony. See

Cal. Penal Code § 487(a) (defining grand theft as “[w]hen the

money, labor, or real or personal property taken is of a value

exceeding four hundred dollars” (emphasis added)); cf.

Corona-Sanchez, 291 F.3d at 1208 (observing that whereas

the federal definition of theft criminalizes only the taking of

9060 UNITED STATES v. ESPINOZA-CANO

property, California’s general theft statute, § 484(a) of the

California Penal Code, criminalizes theft of labor and solicita-

tion of false credit reporting).

[4] Accordingly, we apply the modified categorical

approach, which allows the court to consult limited categories

of documents to determine whether the facts underlying the

conviction necessarily establish that the defendant committed

the generic offense. Taylor, 495 U.S. at 602, 110 S.Ct. at

2160. Toward that end, the sentencing court may look to stat-

utory elements, charging documents, and jury instructions to

determine whether an earlier conviction was for a generic

offense. Id. In this circuit, when the conviction in question is

based on a guilty plea, we have approved the sentencing

court’s consideration of “the charging documents in conjunc-

tion with the plea agreement, the transcript of a plea proceed-

ing, or the judgment to determine whether the defendant pled

guilty to the elements of the generic crime.” Corona-Sanchez,

291 F.3d at 1211 (citing United States v. Bonat, 106 F.3d

1472, 1476-78 (9th Cir. 1997)).

[5] The question we now address is, under a modified cate-

gorical approach, what consideration, if any, may a sentenc-

ing court give to a police report that is incorporated into a

complaint which, in turn, constitutes the basis for a guilty plea

and, hence, the prior conviction? The starting point for our

analysis is Shepard v. United States because it addresses the

question of whether a sentencing court may look to police

reports or complaint applications to determine whether an ear-

lier guilty plea necessarily admitted, and was the basis for, a

predicate conviction for an enhanced sentence. Shepard, 544

U.S. 13, 125 S.Ct. 1254. The government argued in Shepard

that a sentencing court may properly consider police reports

and complaint applications in determining whether a felon has

sustained predicate convictions for violent felonies or drug

offenses for purposes of the Armed Career Criminal Act, 18

U.S.C. § 924(e) (2000 ed. and Supp. II). Shepard, 544 U.S. at

21, 125 S.Ct. at 1260. The Shepard Court characterized the

UNITED STATES v. ESPINOZA-CANO 9061

government’s position as an effort to create “a wider evidenti-

ary cast . . . going beyond conclusive records made or used

in adjudicating guilt and looking to documents submitted to

lower courts even prior to charges,” id., and rejected the gov-

ernment’s “call to ease away from the Taylor [holding].” Id.

at 23. In so doing, the Court observed that “Taylor is clear

that any enquiry beyond statute and charging document must

be narrowly restricted to implement the object of the statute

and avoid evidentiary disputes.” Id. at 23 n.4. In essence,

Shepard rejected the contention that the police report could be

consulted because it was “sufficiently reliable” and the defen-

dant had never disputed its accuracy. Id. at 18-19. The Court

declared that under a nongeneric statute, certainty that the

defendant had pleaded guilty to the generic offense may come

from either (1) “a charging document that narrows the charge

to generic limits,” or (2) “the defendant’s own admissions or

accepted findings of fact confirming the factual basis for a

valid plea.”4 Id. at 25.

Shepard, in essence, affirms our holdings that allow the

district court in a modified categorical analysis to consider the

charging document, plea agreement, and plea colloquy. For

example, in Hernandez-Valdovinos, 352 F.3d at 1248, we

upheld the district court’s examination of the indictment, plea

agreement, minutes from the change of plea hearing, and the

judgment. See also Bonat, 106 F.3d at 1476-77 (allowing the

district court to consider the information, the judgment, and

the plea transcript); United States v. Sweeten, 933 F.2d 765,

768-70 (9th Cir. 1991) (allowing the district court to consider

the indictment, signed plea agreement, and judgment).

[6] In this case, the police report falls squarely into the cat-

4

Because the charging documents, the defendant’s admissions, and the

findings of fact are documents that provide certainty, the Court’s use of

these documents to determine whether an offense is an aggravated felony

did not raise concerns under Apprendi for a plurality of the Court. Shep-

ard, 544 U.S. at 24, 125 S. Ct. at 1262.

9062 UNITED STATES v. ESPINOZA-CANO

egory of documents that are proper for judicial consideration

as articulated by Taylor and Shepard. Here, the police report

was incorporated by reference into the charging document, a

formal complaint, thereby becoming part of the complaint and

narrowing the factual basis for the charge. In addition,

Espinoza-Cano, through counsel, admitted in open court that

the facts in the police report constituted the factual basis

underlying his guilty plea.5 This admission was the functional

equivalent of what occurred in United States v. Hernandez-

Hernandez, 431 F.3d 1212 (9th Cir. 2005), in which we held

that a defendant’s assent to the statement of facts in a motion

under California Penal Code § 995 to set aside the indictment

or information was a proper basis for a sentencing court to

engage in a modified categorical analysis. Id. at 1218. For the

same reason, the police report as it was utilized in the present

case became a “mutually agreed-upon statement of facts”

within the meaning of United States v. Almazan-Becerra, No.

05-10056, ___ F.3d ___ (9th Cir. 2006).6 The district court’s

5

The relevant portion of the plea colloquy is as follows:

THE COURT: Will all counsel stipulate there is a factual basis

for the plea entered by each of their clients based upon police

reports contained in the Court’s file. Mr. Sharkey?

MR. SHARKEY [Counsel for Espinoza-Cano]: So stipulated,

your Honor.

...

THE COURT: All right. . . . [T]he Court finds that there is a fac-

tual basis for each of the pleas entered by each defendant and the

Court accepts those pleas.

6

In this way, the police report at issue is unlike the police report in

Almazan-Becerra. Both Espinoza-Cano and the State agreed that the

police report contained the facts of his offense, rendering the document the

factual basis of his plea agreement. See Hernandez-Hernandez, 431 F.3d

at 1218 (finding “no appreciable difference between allowing the district

court to rely on [a] stipulated 995 Motion which served as the factual basis

for the plea and allowing prior sentencing courts to rely on a plea agree-

ment or the transcript of a plea colloquy”). Whereas it was unclear in

Almazan-Becerra which part of the defendant’s plea the police report was

UNITED STATES v. ESPINOZA-CANO 9063

consideration of the police report did not widen the evidenti-

ary net. Rather, the police report became part and parcel of

the complaint and formed the agreed upon factual basis for

the plea. Thus, the underlying record of Espinoza-Cano’s

prior conviction was not expanded beyond that which Taylor

and Shepard approved for a modified categorical analysis.

Moreover, the manner in which the police report was utilized,

to both define the charge and provide the factual basis for

Espinoza-Cano’s guilty plea, eliminated any need for resolu-

tion of evidentiary disputes or judicial fact-finding. See

Hernandez-Hernandez, 431 F.3d at 1218. Under these cir-

cumstances, we hold that it was proper for the district court

to consider the police report in determining whether

Espinoza-Cano had suffered a prior aggravated felony convic-

tion.

[7] Turning to Espinoza-Cano’s prior conviction, it is clear

that it meets the generic definition of a theft offense. It is

plain from the criminal complaint, as well as from the tran-

script of the plea colloquy, that Espinoza-Cano was charged

with, and convicted of, taking personal property with a value

in excess of $400.7 The parties do not dispute that the facts in

the police report are sufficient to show that Espinoza-Cano

had the requisite intent to deprive the owner of ownership.8

meant to support because the defendant pled in the disjunctive that he did

“either transport or sell or offer to sell marijuana,” Almazan-Becerra, No.

05-10056, __ F.3d __, slip op. at 8545 (emphasis in original), here the

police report narrowed the offense to a generic theft offense, precluding

any possibility that Espinoza-Cano was convicted of a non-generic theft

offense within California Penal Code §§ 484-487.

7

Count 1 of the criminal complaint alleged that Espinoza-Cano, in vio-

lation of California Penal Code §§ 484-487(a) “did unlawfully take per-

sonal property, merchandise, of a value exceeding four hundred dollars

($400.00), the property of Albertson’s.” During the plea colloquy,

Espinoza-Cano pleaded guilty to “grand theft of personal property of a

value of over $400 in violation of Penal Code Section 484 to 487.”

8

According to the report, Espinoza-Cano and his co-defendant entered

an Albertson’s grocery store. They placed several items in a shopping cart,

9064 UNITED STATES v. ESPINOZA-CANO

Because these facts also foreclose the possibility that he was

convicted on an aiding and abetting theory, we need not con-

sider Espinoza-Cano’s additional argument which is predi-

cated on that alleged possibility.

C. Acceptance of Responsibility

Under the Guidelines, a defendant who “clearly demon-

strates acceptance of responsibility for his offense” is entitled

to a two-level reduction in offense level. U.S. Sentencing

Guidelines Manual § 3E1.1(a) (2004). The question presented

in this case is whether Espinoza-Cano should have received

a third level reduction in offense level under section 3E1.1(b)

for acceptance of responsibility at his sentencing.9

[8] Before April 2003, a defendant could receive a third

level reduction either for providing information to the govern-

ment regarding his own involvement or by timely notifying

the government of his intent to plead guilty. Id. Under the

Prosecutorial Remedies and Other Tools to end the Exploita-

tion of Children Today Act of 2003 (“PROTECT Act”), Pub.

L. No. 108-21, § 401(g), 117 Stat. 650, 671-72 (2003), a

defendant is eligible for a third level reduction only upon a

motion by the government stating that “the defendant has

assisted authorities” by “timely notifying authorities of his

intention to enter a plea of guilty, thereby permitting the gov-

ernment to avoid preparing for trial.”10 PROTECT Act,

but concealed other items under their shirts. The total value of the items

(including over $250 in liquor) was approximately $600. When store

security attempted to question him, Espinoza-Cano dropped the items and

ran from the store. An off-duty officer chased Espinoza-Cano and placed

him under arrest. Under these facts Espinoza-Cano’s intent to deprive

Albertson’s of over $400 worth of merchandise was established.

9

Because the parties neither raise nor dispute the question of whether

Espinoza-Cano was entitled to the two-level reduction under section

3E1.1(a), we do not address the propriety of the two-level reduction.

10

Although the Guidelines are advisory after United States v. Booker,

543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) — and were advi-

UNITED STATES v. ESPINOZA-CANO 9065

§ 401(g). “Because the Government is in the best position to

determine whether the defendant has assisted authorities in a

manner that avoids preparing for trial, an adjustment under

subsection (b) may only be granted upon a formal motion by

the Government at the time of sentencing.” U.S. Sentencing

Guidelines Manual § 3E1.1 cmt. n.6 (2004) (citing PROTECT

Act, § 401(g)(2)(B)) (emphasis added).

Espinoza-Cano contends that he was entitled to the third

level reduction for acceptance of responsibility because, under

section 3E1.1, he was willing to stipulate to all the facts nec-

essary for him to be found guilty, thereby allowing the gov-

ernment to avoid trial preparation. Espinoza-Cano further

contends that the government arbitrarily decided not to make

the requisite motion for a third point reduction, thereby penal-

izing him for asserting his constitutional rights. Finally,

Espinoza-Cano argues that the district court erred in not

applying any level of review to the government’s decision not

to request the third point reduction, and urges us to adopt a

standard which the district court, upon remand, may apply in

this case.

The government responds that under our decision in United

States v. Villasenor-Cesar, 114 F.3d 970 (9th Cir. 1997),

Espinoza-Cano was not eligible for the third point because he

proceeded by way of a stipulated bench trial. The government

further argues that by going to trial, Espinoza-Cano caused

the government to allocate additional resources to anticipate

and defend a complete appeal, and, therefore, he is not enti-

sory at the time of Espinoza-Cano’s sentencing in May 2005 — sentenc-

ing courts are still bound to consult them as one of many factors in a

sentencing analysis and they are a “starting point” for that analysis. Can-

trell, 433 F.3d at 1280. More importantly, the prerequisite in subsection

(b) of section 3E1.1 is a statutory requirement that the district court must

apply in its calculations under the Guidelines, regardless of the advisory

nature of the Guidelines post-Booker. See, e.g., United States v. Cardenas,

405 F.3d 1046, 1048 (9th Cir. 2005) (noting that Booker does not bear on

statutory mandatory minimum sentences).

9066 UNITED STATES v. ESPINOZA-CANO

tled to an adjustment for allowing the government to allocate

its resources efficiently.

[9] We have not yet addressed the question of whether and

to what extent a district court may review the government’s

decision not to file a motion under section 3E1.1(b) for a third

level reduction for acceptance of responsibility by a defen-

dant. Espinoza-Cano’s argument requires us to consider the

standards by which the government’s decision not to file a

motion for a third level reduction for acceptance of responsi-

bility should be reviewed, and we address this question of law

de novo. Cortes, 299 F.3d at 1037.

[10] The starting point for our analysis is the recognition

that the language in section 3E1.1(b) requiring a motion by

the government for a third level reduction for acceptance of

responsibility is similar to the language found in section

5K1.1 governing substantial assistance motions brought by

the government. United States v. Moreno-Trevino, 432 F.3d

1181, 1186 (10th Cir. 2005). Both sections 3E1.1(b) and

5K1.1 state that an additional adjustment in offense level is

available “upon motion of the government.” Under section

5K1.1, the court may depart downward under the Guidelines

“upon motion of the government” when a defendant has pro-

vided substantial assistance. Similarly, section 3E1.1(b) pro-

vides that “upon motion of the government” the court may

depart downward for a defendant’s timely notification of his

intent to plead guilty. It is a long-established principle of stat-

utory construction that similar statutory language should be

construed similarly. Northcross v. Bd. of Educ. of Memphis

City Sch., 412 U.S. 427, 428, 93 S.Ct. 2201, 2202, 37 L.Ed.2d

48 (1973); United States v. Sioux, 362 F.3d 1241, 1246 (9th

Cir. 2004). This principle of consistent statutory construction

for similar language provides initial support for the proposi-

tion that prosecutors should be afforded the same discretion

to file motions under section 3E1.1(b) as they have for

motions under section 5K1.1.

UNITED STATES v. ESPINOZA-CANO 9067

[11] Next, looking to our sister circuits, we note that the

Sixth, Eighth, and Tenth Circuits have all concluded that

“prosecutors should be afforded the same discretion to file

acceptance-of-responsibility motions under Section 3E1.1(b)

as substantial-assistance motions under Section 5K1.1.”

Moreno-Trevino, 432 F.3d at 1185-86; accord United States

v. Smith, 429 F.3d 620, 628 (6th Cir. 2005) (observing that the

government’s decision not to file a motion under section

3E1.1(b) could not be “based on a constitutionally impermis-

sible motive such as race or religion”); United States v. Smith,

422 F.3d 715, 726 (8th Cir. 2005) (“[T]he Government’s fail-

ure to file a § 3E1.1(b) motion must be rationally related to

a legitimate governmental end . . . .”).

The Tenth Circuit, in particular, has recognized that the

government’s discretion to file a motion under section

3E1.1(b) is “a power, not a duty,” Moreno-Trevino, 432 F.3d

at 1186 (citing Wade v. United States, 504 U.S. 181, 185, 112

S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992), observing that the

government has the power, but not a duty to file a substantial

assistance motion). Drawing heavily upon the principle of

consistency in statutory construction, the Tenth Circuit con-

cluded that “a court can review the government’s refusal to

file a Section 3E1.1(b) motion and grant a remedy if it finds

the refusal was ‘(1) animated by an unconstitutional motive,

or (2) not rationally related to a legitimate government end.’ ”

Id. (citation omitted).

The Moreno-Trevino court further recognized that the

recent amendment to section 3E1.1(b) added an Application

Note emphasizing that it is the government that is in a supe-

rior position to assess “whether the defendant has assisted

authorities in a manner that avoids preparing for trial . . . .”

U.S. Sentencing Guidelines Manual § 3E1.1 cmt. n.6. We

agree with the Moreno-Trevino court that the Application

Note is significant for two reasons. First, it reflects common

sense because, in fact, the government is in the best position

to (1) know what it has and has not done in relation to trial

9068 UNITED STATES v. ESPINOZA-CANO

preparation, and (2) assess whether the defendant’s notifica-

tion of an intent to plead guilty has assisted the government

in avoiding trial preparation. Second, this Application Note is

important because it amounts to a de facto presumption that

the government possesses superior knowledge of its trial prep-

aration status. This presumption, in turn, justifies the require-

ment that a defendant who challenges the government

declining to move for a third level of acceptance of responsi-

bility has a threshold evidentiary burden to show unconstitu-

tional motive, or arbitrary governmental action.11 This

threshold requirement is properly placed upon the defendant

who urges unconstitutional motive or arbitrary action and is

consistent with a similar requirement for a defendant who

challenges the government’s decision not to bring a substan-

tial assistance motion under section 5K1.1.12

[12] Accordingly, we join the Sixth, Eighth, and Tenth Cir-

cuits, holding that a prosecutor is afforded the same discretion

to file an acceptance of responsibility motion for a third level

reduction under section 3E1.1(b) as that afforded for the filing

of a substantial assistance motion under section 5K1.1. That

standard is, “the government cannot refuse to file . . . a motion

on the basis of an unconstitutional motive (e.g., racial dis-

crimination), or arbitrarily (i.e., for reasons not rationally

related to any legitimate governmental interest).” United

States v. Murphy, 65 F.3d 758, 762 (9th Cir. 1995) (citing

United States v. Burrows, 36 F.3d 875, 884 (9th Cir. 1994));

accord Wade, 504 U.S. at 186, 112 S.Ct. at 1843-44.

[13] Espinoza-Cano argues that although the government

may have the same discretion under section 3E1.1(b) as it

does under section 5K1.1, the government’s decision not to

11

Discussed, infra.

12

As the Supreme Court has recognized, neither a mere claim of sub-

stantial assistance nor a generalized allegation of improper motive would

entitle a defendant to a remedy, discovery, or an evidentiary hearing.

Wade, 504 U.S. at 186, 112 S.Ct. at 1844.

UNITED STATES v. ESPINOZA-CANO 9069

file a motion in this case was arbitrary because he satisfied the

prerequisite of permitting the government to avoid trial prepa-

ration when he opted to proceed by way of a stipulated bench

trial. This contention, however, runs afoul of our holding in

Villasenor-Cesar that proceeding by way of a stipulated

bench trial is inconsistent with notifying authorities of an

intent to plead guilty, Villasenor-Cesar, 114 F.3d at 974, and

ignores the principle that a defendant’s fulfillment of the con-

ditions for a motion for an adjusted offense level is necessary,

but does not mandate relief. Wade, 504 U.S. at 187, 112 S.Ct.

at 1844.

In construing section 3E1.1 before the PROTECT Act, we

concluded that former subsection (b)(2), which provided for

an additional one-level downward adjustment when the defen-

dant “timely notif[ied] authorities of his intention to enter a

plea of guilty,” could not be satisfied if the defendant pro-

ceeded to a stipulated bench trial. Villasenor-Cesar, 114 F.3d

at 974. In Villasenor-Cesar, the defendant argued that he was

entitled to a downward adjustment under subsection (b)(2),

despite the fact that he had not notified authorities of his

intent to plead guilty, because he did not challenge his factual

guilt at his stipulated bench trial.13 We explained that the

defendant’s argument failed because it ran contrary to the

“language, structure, history, and policy” of the Guidelines.

Id. Application Note 2 only applied to subsection (a)— which

granted a two-level reduction for clearly demonstrating an

acceptance of responsibility— because it was possible for a

defendant to “show contrition . . . while making a legal chal-

lenge at trial.” Id. It would have been illogical to apply Appli-

cation Note 2 to subsection (b)(2) because “[a] defendant

cannot . . . timely notify the Government of an intent to plead

guilty, thus permitting the Government to avoid trial prepara-

tion and, at the same time, proceed to trial.” Id.

13

Application Note 2 of the Guidelines provided that a defendant could

both “clearly demonstrate an acceptance of responsibility” and “exercise[ ]

his constitutional right to a trial.” Villasenor-Cesar, 114 F.3d at 973 (quot-

ing U.S. Sentencing Guidelines Manual § 3E1.1 cmt. n.2 (1995)).

9070 UNITED STATES v. ESPINOZA-CANO

The PROTECT Act does not undermine the reasoning of

Villasenor-Cesar. Instead, the PROTECT Act makes the third

level reduction subject to the discretion of the government,

rather than mandatory, upon a timely plea of guilty. Other-

wise, the language of section 3E1.1(b) tracks the former lan-

guage of section 3E1.1(b)(2). Espinoza-Cano attempts to

distinguish Villasenor-Cesar by arguing that in Villasenor-

Cesar the defendant had contested the legality of his prior depor-

tation.14 Our analysis in Villasenor-Cesar, however, did not

turn on the content of the stipulated bench trial. Rather, it was

the plain language of the Guidelines that precluded a defen-

dant from both proceeding to trial and receiving a third level

reduction in offense level for notifying the prosecution of his

intent to plead guilty.

Espinoza-Cano argues that by withholding the motion, the

government is penalizing him for exercising his right to pur-

sue an appeal. Espinoza-Cano relies on Cortes, 299 F.3d

1030, and United States v. Vance, 62 F.3d 1152 (9th Cir.

1995), in support of this argument, but both cases are distin-

guishable.

In Cortes, we held that it was possible for a defendant both

to exercise his right to a trial and to demonstrate acceptance

of responsibility. Cortes, 299 F.3d at 1038. Cortes did not

address whether the third level reduction can be withheld

from a defendant who refuses to plead guilty — and satisfy

the prerequisite to the additional reduction — because he

wishes to retain his right to appeal. In Vance, we held that the

defendant’s filing of a motion to suppress evidence could not

14

In fact, this is a point of similarity between Villasenor-Cesar and the

present case. Espinoza-Cano also raised legal challenges to the indictment

in a motion to dismiss. In Villasenor-Cesar, we affirmed the district

court’s decision to award only a two-point reduction, notwithstanding the

district court’s concerns that the defendant may have been penalized for

raising constitutional defenses, because — as discussed in the text — a

stipulated bench trial does not satisfy the prerequisite of notifying the gov-

ernment of an intent to plead guilty. Villasenor-Cesar, 114 F.3d at 973.

UNITED STATES v. ESPINOZA-CANO 9071

be held against him in determining acceptance of responsibil-

ity. Vance, 62 F.3d at 1157. We declared that the exercise of

a constitutional right could not be used against a defendant in

the analysis of whether a defendant had demonstrated accep-

tance of responsibility. Id. We stated further that filing a

motion to suppress evidence could not be a bar to receiving

the third point for timely notifying the prosecution of an intent

to plead guilty if the notification was still given far enough in

advance that the government could avoid trial preparation. Id.

Neither Cortes nor Vance bears on the question of whether the

government may condition a motion for adjustment in offense

level on the defendant’s waiver of his right to trial, where the

government has been vested with broad discretion to deter-

mine when the adjustment is appropriate. We commented in

Villasenor-Cesar, and reaffirm now, that there is nothing

improper about the government providing an incentive to plea

bargain. Villasenor-Cesar, 114 F.3d at 975 (citing United

States v. Narramore, 36 F.3d 845, 847 (9th Cir. 1994));

accord Corbitt v. New Jersey, 439 U.S. 212, 218, 99 S.Ct.

492, 497, 58 L.Ed.2d 466 (1978) (“[N]ot every burden on the

exercise of a constitutional right, and not every pressure or

encouragement to waive such a right, is invalid.”).

[14] The government’s decision not to file a motion for a

third point is fully consistent with our holding in Villasenor-

Cesar. By proceeding to trial, Espinoza-Cano did not allow

the government to avoid spending resources on preparing for

trial. Even if we were to equate a stipulated bench trial with

an outright guilty plea, the government still would not have

been compelled to file the motion. Wade, 504 U.S. at 187, 112

S.Ct. at 1844. There are rational reasons for the government

to prefer an outright guilty plea to a stipulated bench trial. In

particular, as the government urges, a plea of guilty allows the

government to avoid expending resources “anticipating, and

ultimately defending, a complete appeal.” As noted in Wade,

“[t]he Government’s decision not to move may [be] based . . .

simply on its rational assessment of the cost and benefit that

would flow from moving.” Id.

9072 UNITED STATES v. ESPINOZA-CANO

[15] Because we find the district court reached the right

result when it denied Espinoza-Cano’s request for a third

point for acceptance of responsibility, we decline Espinoza-

Cano’s invitation to remand this case for further proceedings.

A defendant is not entitled to an evidentiary hearing based

merely upon his claim or allegation that the government’s

decision not to move for a third level acceptance of responsi-

bility reduction was the result of unconstitutional or arbitrary

government action. See Wade, 504 U.S. at 186, 112 S.Ct. at

1844. As is the case for substantial assistance motions, the

defendant must present objective evidence of an improper

motive on the part of the government. Murphy, 65 F.3d at

762. Before the district court, Espinoza-Cano made only an

unsubstantiated claim of arbitrariness without providing any

evidence to meet this threshold burden. The government pre-

sented adequate justification for declining to file a motion for

a third level reduction, specifically that the case proceeded to

trial and the government was required to undertake prepara-

tion. The government’s decision not to move for a third level

reduction is supported by Villasenor-Cesar and by the gov-

ernment’s correct interpretation of section 3E1.1(b) and its

commentary.

IV. CONCLUSION

For the foregoing reasons, Espinoza-Cano’s conviction and

sentence are

AFFIRMED.