United States of America v. Reyes Castillo -Garcia

*The Honorable Dan Aaron Polster, United States District Judge for
the Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0076P (6th Cir.)
File Name: 00a0076p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
R EYES C ASTILLO -GARCIA ,
Defendant-Appellant.
;>

1
No. 98-2278
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 98-00085—Robert Holmes Bell, District Judge.
Submitted: December 9, 1999
Decided and Filed: March 3, 2000
Before: BOGGS and SUHRHEINRICH, Circuit Judges;
POLSTER, District Judge.*
_________________
COUNSEL
ON BRIEF: Sharon A. Turek, FEDERAL PUBLIC
DEFENDERS OFFICE, Grand Rapids, Michigan, for

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2 United States v. Castillo-Garcia No. 98-2278
Appellant. Daniel Y. Mekaru, OFFICE OF THE U.S.
ATTORNEY FOR THE WESTERN DISTRICT OF
MICHIGAN, Grand Rapids, Michigan, for Appellee.
_________________
OPINION
_________________
DAN AARON POLSTER, District Judge. Defendant-
Appellant Reyes Castillo-Garcia (“Castillo-Garcia”) appeals
his sentence, specifically challenging the district court’s
refusal to grant a reduction for acceptance of responsibility.
For the reasons that follow, the decision of the district court
is AFFIRMED.
I.
Castillo-Garcia pled guilty on July 23, 1998 to an
indictment charging him with re-entering the United States
after deportation in violation of 8 U.S.C. §1326(a). He was
sentenced on November 6, 1998 to a term of imprisonment
for 96 months (at the top of the guidelines range for offense
level 24 and criminal history category IV). The district court
rejected appellant’s request for a reduction for acceptance of
responsibility, finding that his history of illegal re-entries and
his statement to the Probation Officer suggested no true
remorse. Castillo-Garcia filed a timely notice of appeal on
November 16, 1998.
The sole issue on appeal is whether the district court
committed clear error in denying Castillo-Garcia’s request for
a reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1. As discussed below, the district court did not err in
making this decision.
II.
Section 3E1.1. of the Sentencing Guidelines provides that:

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No. 98-2278 United States v. Castillo-Garcia 3
1The only issue here is whether the district court’s decision not to
grant the 2-level reduction was clearly erroneous. Had the district court
granted the 2-level reduction, Castillo-Garcia would then have been
eligible for, and likely would have likely received, a reduction of an
additional level.
(a) If the defendant clearly demonstrates acceptance of
responsibility 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 the
defendant has assisted authorities in the investigation or
prosecution of his own misconduct by taking one or more
of the following steps:
(1) timely providing complete information to the
government concerning his own involvement in the
offense; or
(2) timely notifying authorities of his intention to
enter a plea of guilty, thereby permitting the government
to avoid preparing for trial and permitting the court to
allocate its resources efficiently,
decrease the offense level by 1 additional level.1
United States Sentencing Commission, Guidelines Manual,
§ 3E1.1 (Nov. 1998).
Application Note 3 to the Guidelines instructs that while
"[e]ntry of a plea of guilty prior to the commencement of trial
combined with truthfully admitting the conduct comprising
the offense of conviction ... will constitute significant
evidence of acceptance of responsibility," this evidence may
nonetheless "be outweighed by conduct of the defendant that
is inconsistent with such acceptance of responsibility" USSG
§ 3E1.1, comment. (n.3). Thus, merely pleading guilty does

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4 United States v. Castillo-Garcia No. 98-2278
not entitle a defendant to an adjustment "as a matter of right."
United States v. Wolfe, 71 F.3d 611, 616 (6th Cir. 1995).
Application Note 5 to § 3E1.1 further discusses the
applicable standard of review: “The sentencing judge is in a
unique position to evaluate a defendant's acceptance of
responsibility. For this reason, the determination of the
sentencing judge is entitled to great deference on review”
USSG § 3E1.1, comment. (n.5). Because it is generally a
question of fact, the trial court's determination of whether a
defendant has accepted responsibility normally enjoys the
protection of the “clearly erroneous” standard, and will not be
overturned unless it is without foundation. United States v.
Morrison, 983 F.2d 730, 732 (6th Cir.1993) (citing United
States v. Wilson, 878 F.2d 921, 923 (6th Cir. 1989)).
Applying these standards, the court considers the merits of
appellant’s arguments.
III.
Castillo-Garcia argues that his efforts to accept
responsibility are not outweighed by the fact that he has re-
entered the country illegally on previous occasions. He notes
that the inquiry under §3E1.1 is “limited to ‘acceptance of the
offense of conviction’ not for illegal conduct generally.”
United States v. Moored, 997 F.2d 139, 145 (6th Cir. 1993).
This is precisely the inquiry made by the district court.
While it is true that entering a guilty plea prior to trial
combined with admitting to the underlying illegal conduct
generally shows acceptance of responsibility, the reduction is
not automatic. It is particularly appropriate to refuse a
downward adjustment for acceptance of responsibility when
a defendant is a repeat offender of the same statute. See
United States v. Childers, 86 F.3d 562, 563-64 (6th Cir.
1996). Castillo-Garcia has been deported before for
committing crimes in this country, and the district court was
suspicious that Castillo-Garcia would again illegally re-enter
the country. Lack of true remorse is a valid consideration
under §3E1.1. See United States v. Morrison, 983 F.2d 730,
735 (6th Cir. 1993).
No. 98-2278 United States v. Castillo-Garcia 5
2After a pause, the defendant stated that he would try to get
permission to come back (JA 24).
The district court’s disbelief in Castillo-Garcia’s remorse
was well founded. When the Probation Officer asked him
what he intended to do after being deported, the defendant
replied that he intended to come back (JA 24).2 Additionally,
when given the opportunity to address the court at sentencing,
Castillo-Garcia did not express remorse or contrition for his
actions. See United States v. Fabela-Fabela, No. 92-1263,
1993 WL 103248 (6th Cir. April 7, 1993).
The sentencing court explicitly stated that it was refusing to
grant the downward adjustment as an exercise of discretion,
and that it believed such a decision should be “a very rare
occurrence that should be undertaken only very carefully by
the district judge” (JA 29).
There is no evidence of malice on the part of the sentencing
judge. To the contrary, the court granted each of defendant’s
requests for (1) treatment of his medical condition, (2)
substance abuse therapy, and (3) educational or vocational
training. In addition, the sentencing judge considered the
defendant’s financial circumstances and waived any fine in
the case.
IV.
The district court clearly articulated its basis for not
granting the reduction for acceptance of responsibility, and
there is ample support in the record for this conclusion.
Accordingly, we AFFIRM the sentence.

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