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United States Court of Appeals,Eleventh Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Giovani YATE, Defendant-Appellant.

No. 97-5155.

Decided: May 24, 1999

Before EDMONDSON and MARCUS, Circuit Judges, and ALARCON *, Senior Circuit Judge. Julio Gutierrez, Miami, FL, for Defendant-Appellant. William A. Keefer, U.S. Attorney, Marc Fagelson, Richard Hong, Bert Jordan, Assistant U.S. Attorneys, Miami, FL, for Plaintiff-Appellee.

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 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



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 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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