Unpublished Disposition, 919 F.2d 146 (9th Cir. 1988)

MEMORANDUM^** 

Isidro Alvarez-Centeno ("Alvarez") appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.), following his guilty plea to one count of distribution of heroin in violation of 21 U.S.C. § 841(a) (1). Alvarez contends that the district court erred by (1) refusing to hold an evidentiary hearing to evaluate allegedly mitigating circumstances of his offense, (2) refusing to grant him a downward adjustment for acceptance of responsibility and (3) refusing to depart downward based on the "mitigating circumstance" of the government's failure to move for a downward departure pursuant to U.S.S.G. Sec. 5K1.1, based on his "substantial assistance" to authorities. We have jurisdiction under 28 U.S.C. § 1291 to address the first two claims, and we affirm the sentence. We lack jurisdiction to review the district court's refusal to depart downward from the recommended Guideline range and thus we dismiss that part of the appeal.

FACTS

Alvarez was arrested on December 22, 1988 after a sting operation involving a confidential informant, and indicted in four counts with distribution of heroin. At the time of his arrest, Alvarez was on felony probation, pursuant to a 1986 indictment in state court charging similar crimes.¹ 

At the pretrial conference Alvarez claimed that, although he acted illegally, he did so in his capacity as an informant for the state authorities and thus lacked criminal intent. The government contended that Alvarez worked "both sides of the street," continuing his relationship with the state solely to excuse his ongoing illegal conduct.

Alvarez entered a guilty plea to Count III of the indictment pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), and the government dismissed the remaining counts. Alvarez then requested a hearing to present evidence of his past and continuing cooperation with state authorities. The court denied the request, but allowed Alvarez to file written statements. Alvarez was sentenced to eighty-seven months' imprisonment, the uppermost limit of the applicable Guidelines range, followed by five years' supervised release.

We review for abuse of discretion a sentencing court's refusal to hold an evidentiary hearing. United States v. Monaco, 852 F.2d 1143, 1148 (9th Cir. 1988), cert. denied, 488 U.S. 1040 (1989). " 'Due process does not require an evidentiary hearing ... on all challenged information in the presentence report.' " Id. (quoting United States v. Petitto, 767 F.2d 607, 611 (9th Cir. 1985), overruled on other grounds, United States v. Fernandez-Angulo, 897 F.2d 1514 (9th Cir. 1990)). " ' [T]he scope of the procedure for rebuttal lies within the sound discretion of the trial judge....' " Id. (quoting United States v. Peterman, 841 F.2d 1474, 1484 (10th Cir. 1988), cert. denied, 488 U.S. 1004 (1989) (citations omitted)).

Here, Alvarez did not contest the facts set forth in the presentence report but rather, the conclusions drawn from those facts. He sought, and was permitted, to introduce additional evidence showing his lack of criminal intent. Moreover, Alvarez claimed that the state authorities would lie if subpoenaed to testify at a hearing. The court did not abuse its discretion by deciding that an evidentiary hearing would not advance the resolution of Alvarez' claim. Id., 852 F.2d at 1150.

U.S.S.G. Sec. 3E1.1(c) authorizes a two-level reduction in a defendant's base offense level for acceptance of responsibility. A defendant who pleads guilty is not automatically entitled to this adjustment. U.S.S.G. Sec. 3E1.1, comment. n. 3; see United States v. Gonzalez, 897 F.2d 1018, 1020 (9th Cir. 1990) (noting in dictum that guilty plea does not guarantee reduction). Whether a defendant has accepted responsibility for his crime is a factual determination reviewed for clear error. Id. at 1019-20 (denial of reduction not clear error where defendant protested his innocence at trial and told probation officer he was not involved in the offense). After considering a defendant's objections, the district court may adopt the presentence report's facts and recommendations. United States v. Corley, 909 F.2d 359 (9th Cir. 1990).

Here, Alvarez stated to the district court that he had agreed to plead guilty only because the state authorities had informed him that they would refuse to support his defense at trial. Moreover, both before and after he pleaded guilty to Count III, Alvarez maintained to his probation officer that he had done nothing illegal, and suggested once that he should withdraw his plea and fire his attorney. Alvarez did not contest these facts at sentencing. The district court did not clearly err by determining that Alvarez had not accepted responsibility for his offense. See Gonzalez, 897 F.2d at 1020.

The district court may impose a sentence below the Guidelines' range, but not below the statutory minimum, if it discerns a "mitigating circumstance that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." United States v. Sharp, 883 F.2d 829, 831 (9th Cir. 1989) (quoting 18 U.S.C. § 3553(b)). The district court may impose a sentence below the statutory minimum if the government moves for a departure to reward "a defendant's substantial assistance in the investigation or prosecution" of others. 18 U.S.C. § 3553(e). See United States v. Ayarza, 874 F.2d 647, 653 (9th Cir. 1989), cert. denied, 110 S. Ct. 847 (1990). A trial court's discretionary refusal to depart is not subject to review on appeal. United States v. Morales, 898 F.2d 99, 102 (9th Cir. 1990).

Here, Alvarez did not challenge the government's refusal to move for departure based on his assistance to state authorities, but argued that the court should have considered this refusal a "mitigating circumstance" within the meaning of section 3553(b) because there was clear and uncontested evidence of his cooperation. The district court clearly did not misapprehend its authority to depart.²  We therefore lack jurisdiction to review the district court's decision, and we dismiss this part of the appeal. See Morales, 898 F.2d at 102.

AFFIRMED IN PART AND DISMISSED IN PART.