United States v. Yate

PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ------------------------------------------- FILED No. 97-5155 U.S. COURT OF APPEALS -------------------------------------------- ELEVENTH CIRCUIT 05/24/99 D. C. Docket No. 97-25-CR-JAL THOMAS K. KAHN CLERK

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

GIOVANI YATE, Defendant-Appellant.

---------------------------------------------------------------- Appeal from the United States District Court for the Southern District of Florida ---------------------------------------------------------------- (May 24, 1999)

Before EDMONDSON and MARCUS, Circuit Judges, and ALARCON*, Senior Circuit Judge.

________________

* Honorable Arthur L. Alarcon, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by designation. PER CURIAM:

Defendant Giovani Yate appeals his 120-month sentence for conspiracy to

import cocaine in violation of 21 U.S.C. § 963 .

This case presents the issue of whether a sentencing court’s finding that a

defendant has truthfully admitted the conduct comprising the offense of conviction

for purposes of an acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1,

is incompatible with a finding that the defendant has failed to satisfy the

requirement of U.S.S.G. § 5C1.2(5) that the defendant truthfully disclose to the

government all information and evidence that he has about the offense and all

relevant conduct.

A sentencing court’s conclusion that a defendant accepted responsibility

under section 3E1.1 does not preclude a finding that the defendant has failed to

meet the affirmative-disclosure requirement of section 5C1.2(5):1 briefly stated,

section 5C1.2(5) is a “tell-all” provision, demanding a different kind of disclosure

than section 3E1.1 demands.2 See United States v. Sabir, 117 F.3d 750, 752 (3d 1 We do not decide whether a defendant who has satisfied the requirement of section 5C1.2(5) is entitled to a reduction for acceptance of responsibility: That issue is not before us. 2 Section 5C1.2(5) requires the defendant to “truthfully provide[] to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan[.]” In contrast, for an acceptance-of- responsibility reduction, “a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction . . . . A defendant may remain silent in 2 Cir. 1997) (“[T]he acceptance of responsibility provisions in the guidelines plainly

do not subsume all of a defendant’s responsibilities under the safety valve

provisions.”); United States v. Arrington, 73 F.3d 144, 149 (7th Cir. 1996) (“[T]he

admission of responsibility necessary to obtain a reduction under § 3E1.1(a) is not

necessarily sufficient to satisfy [§ 5C1.2(5)].”); United States v. Adu, 82 F.3d 119,

124 (6th Cir. 1996) (“[T]he fact that the defendant qualified for a two-level

acceptance of responsibility reduction under § 3E1.1(a) does not establish

eligibility for a safety valve reduction under § 5C1.2.”). We therefore AFFIRM

Yate’s sentence.3 AFFIRMED.

respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain [the reduction,]” as long as the defendant does not falsely deny relevant conduct. U.S.S.G. § 3E1.1, comment. (n.1(a)). 3 Yate’s other arguments -- about the factual sufficiency of his disclosure, a mitigating-role reduction, and a downward departure -- lack merit and do not warrant discussion.

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