UNITED STATES of America, Plaintiff-Appellee, v. Johnny Mateo VANCE, Defendant-Appellant

62 F.3d 1152 95 Cal. Daily Op. Serv. 6229 , 95 Daily Journal D.A.R. 10,612 UNITED STATES of America, Plaintiff-Appellee, v. Johnny Mateo VANCE, Defendant-Appellant. No. 94-10245. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 14, 1995. Decided Aug. 7, 1995. Howard Trapp, Howard Trapp Inc. (on the briefs), Agana, Guam; and Jan Rubinstein, Agana, Guam (argued), for defendant-appellant. Karon V. Johnson, Asst. U.S. Atty., Agana, Guam, for plaintiff-appellee. Appeal from the United States District Court for the District of Guam. Before: REINHARDT, THOMPSON, and KLEINFELD, Circuit Judges. Opinion by Judge KLEINFELD. Concurrence by Judge REINHARDT. KLEINFELD, Circuit Judge: 1 The most substantial issue in this case is how much proof of acceptance of responsibility a district judge can require as a condition of granting the two level sentencing guidelines adjustment available under Guidelines section 3E1.1. Other sentencing issues and a border search issue are also raised. I. FACTS 2 Vance appeals his conviction under 21 U.S.C. Sec. 952 for importing methamphetamine into the United States. He argues that evidence gained during the pat-down search conducted by…

concurring specially.

Because 1 believe that the defendant was denied his right to allocution, I would not reach the issue of acceptance of responsibility. However, were I to do so, I would reach the same result as the majority. For that reason, I concur.

Opinion by Judge KLEINFELD.

Concurrence by Judge REINHARDT.

The most substantial issue in this case is how much proof of acceptance of responsibility a district judge can require as a condition of granting the two level sentencing guidelines adjustment available under Guidelines section 3E1.1. Other sentencing issues and a border search issue are also raised.

I. FACTS

Vance appeals his conviction under 21 U.S.C. § 952 for importing methamphetamine into the United States. He argues that evidence gained during the pat-down search conducted by customs officers should have been suppressed, that he should have been awarded a three-point downward adjustment for a timely acceptance of responsibility, and that the district court erroneously denied him the right to allocution at sentencing. We affirm in part and reverse and remand in part.

On October 30, 1993, Vance arrived in Guam on a flight from Honolulu, Hawaii. A customs officer, who met the plane, testified that Vance looked dazed and glassy eyed, and seemed to have difficulty understanding and responding to his questions. He thought that Vance might be on some kind of medication. Also, Vance’s Hawaii trip was suspiciously short…