FILED
United States Court of Appeals
Tenth Circuit

MAY 25 2004

PATRICK FISHER
Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

	Plaintiff-Appellee,

v.

JOSE SALVADOR CHAVEZ,

	Defendant-Appellant.	

No. 03-1482
(D. Colo.)
(D.Ct. No. 02-CR-300)	

ORDER AND JUDGMENT*

Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior Circuit Judges.

	After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.  See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).  The case is therefore ordered submitted without oral argument.

	Appellant Jose Salvador Chavez, a federal prisoner represented by counsel, appeals his four 108-month concurrent sentences for one count of distribution of fifty grams or more of a mixture or substance containing methamphetamine, one count of distributing a mixture of cocaine, one count of possession with intent to distribute methamphetamine, and one count of possession with intent to distribute cocaine, all in violation of 21 U.S.C. § 841.  He asserts the district court erred by declining to reduce his sentences for acceptance of responsibility under United States Sentencing Guideline (U.S.S.G.) §3E1.1.  We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirm the district court’s sentences.

I.  Factual Background
	Evidence supporting the following facts was introduced at trial and is not in dispute on appeal.  A government informant, with whom Mr. Chavez was acquainted, told Mr. Chavez his “boss” wanted to purchase large quantities of cocaine and methamphetamine and then asked Mr. Chavez if he could supply them.  Mr. Chavez told him he could obtain them, and later gave him a methamphetamine sample to give to his “boss.”  The informant set up a meeting between Mr. Chavez and his “boss” – Dave Storm, a special agent with the Drug Enforcement Agency.  Later, during a recorded conversation, Mr. Chavez agreed to sell Agent Storm five ounces of methamphetamine.

	A day later, Mr. Chavez, Agent Storm, and the informant met outside Mr. Chavez’s home, during which time their conversations were recorded.  Mr. Chavez offered to sell Agent Storm two ounces of methamphetamine and two ounces of cocaine.  Agent Storm saw Mr. Chavez retrieve the drugs from bushes behind his house, after which Agent Storm paid Mr. Chavez $3,400 and left.

	Later, Mr. Chavez and the informant met at Mr. Chavez’s residence, where  Mr. Chavez showed him three ounces of methamphetamine, but said he had five ounces of methamphetamine and two ounces of cocaine for sale.  Pursuant to a search warrant, agents then arrested Mr. Chavez and searched his residence.  When one agent asked Mr. Chavez where the drugs were, he denied all knowledge of any drugs.  Later, the agent told Mr. Chavez if he would tell them where the drugs were, the search would go much quicker, and Mr. Chavez again denied knowing anything.  About fifteen minutes later, after the same agent left the room, Mr. Chavez asked to speak with him and told the agent he would show him the location of some drugs.  Mr. Chavez then led agents to the backyard and some trees where he showed them a sack containing approximately five ounces of methamphetamine and two ounces of cocaine under a tree.  In the course of their search, agents also found a Beretta 9mm semi-automatic hand gun under a pile of clothes in Mr. Chavez’s bedroom.  During the trial, Mr. Chavez raised an entrapment defense, which the jury rejected when it convicted Mr. Chavez of all four drug-related counts in violation of 21 U.S.C. § 841.

II.  Presentence Report, Objection Thereto, and Sentencing
	In preparing the presentence report, the probation officer determined a downward adjustment for acceptance of responsibility under §3E1.1 did not apply, stating:
	In this case, the probation officer is not aware of any pre-trial statements or conduct by the defendant that would support a determination that he accepted responsibility for the crimes of conviction.  It does not appear that the defendant “clearly” has demonstrated acceptance of responsibility.

In so concluding, she noted that in rare situations a defendant may clearly demonstrate acceptance of responsibility even though he exercises his constitutional right to trial, but that in such instances, a determination of acceptance of responsibility will be based primarily on pretrial statements and conduct.  The probation officer also acknowledged the government’s assertion no reduction under U.S.S.G. §3E1.1 should apply based on Mr. Chavez’s testimony at trial that the informant pushed him into selling the drugs; nevertheless, the probation officer indicated she did not hear such testimony, noting it “may be an issue that the court may wish to address at sentencing.”Applying various other sentencing factors, the probation officer calculated Mr. Chavez’s total offense level at 30 and his criminal history category at III, for a final guideline range of 121-151 months imprisonment.

	Through counsel, Mr. Chavez objected to the recommendation not to apply a two-level reduction for acceptance of responsibility under U.S.S.G. §3E1.1.  In response, the probation officer indicated the reduction was not applicable given Mr. Chavez’s pretrial conduct in initially denying he knew anything about the drugs, and the fact that providing information on the whereabouts of the drugs is not the same as Mr. Chavez’s accepting responsibility for distributing or possessing them with the intent to distribute them.

	In addressing the issue at the sentencing hearing, the district court determined the two-level reduction for acceptance of responsibility did not apply.  Nonetheless, the district court granted Mr. Chavez a downward departure for over-representation of his criminal history, thereby reducing his criminal history from III to II.  It then applied the bottom of the sentencing range of 108-135 months, for a sentence of 108 months imprisonment on each of the four counts, to run concurrently.

III.  Discussion
	On appeal, Mr. Chavez renews his Sentencing Guideline objection concerning the district court’s failure to reduce his sentence under U.S.S.G. §3E1.1 for acceptance of responsibility.  Specifically, Mr. Chavez contends the district court erred in not considering: 1) the fact he was “cooperative and helpful” when agents searched his residence, leading them to the narcotics under the tree, and 2) his acknowledgment of wrongful conduct at trial when he admitted a) previously using drugs and receiving a prior drug possession offense; and b) selling the drugs, not only because he felt “pushed,” but because he wanted the money.  Mr. Chavez asserts that instead of considering these criteria, the district court based its decision not to apply §3E1.1 for acceptance of responsibility solely on Mr. Chavez’s defense of entrapment.  Mr. Chavez contends the district court is precluded from relying solely on Mr. Chavez’s entrapment defense but must consider his pretrial conduct in making the determination and make express findings regarding that conduct.

	The government disagrees and contends the district court did assess Mr. Chavez’s pretrial conduct in which he initially denied any knowledge of the drugs.  The government also points out that at trial Mr. Chavez testified inconsistently as to whether he worked with one or two suppliers and denied possessing the gun found under his clothes, claiming a prior occupant left it.  It also claims Mr. Chavez’s testimony he sold the drugs because he felt pressured or “pushed” in support of his entrapment theory, is not credible given his other testimony he engaged in the criminal conduct for money and to keep the informant from getting into trouble with his “boss.”  It also claims Mr. Chavez never showed remorse, indicated he was sorry for what he did, or mentioned he understood the magnitude of his actions.  Finally, it points out Mr. Chavez refused to stipulate to any facts prior to trial, did not truthfully testify at trial, and like the defendant in United States v. James, 257 F.3d 1173, 1185 (10th Cir. 2001), cert. denied, 534 U.S. 1106 (2002), “put the government to the task of proving every element, every fact, every videotape and audiotape, every chemical composition and every geographic detail.”  For these reasons, the government suggests the district court properly denied Mr. Chavez’ request for a sentence reduction under U.S.S.G. §3E1.1.

	Section 3E1.1(a) directs the sentencing court to “decrease the offense level by 2 levels” if “the defendant clearly demonstrates acceptance of responsibility for his offense.”  See U.S.S.G. §3E1.1(a).  Acceptance of responsibility is a factual question and our review of the court’s determination is limited to clear error.  See United States v. Spedalieri, 910 F.2d 707, 712 (10th Cir. 1990).  We review the district court’s legal conclusions under the Sentencing Guidelines de novo, “affording great deference to the district court’s application of the Guidelines to the facts.”  United States v. Eaton, 260 F.3d 1232, 1237 (10th Cir. 2001).  The defendant has the burden of proving by a preponderance of the evidence he accepted responsibility.  See Spedalieri, 910 F.2d at 712.  We have recognized the district court is “in a better position than the appellate court to weigh the defendant’s sincerity of remorse and contrition.”  United States v. Ochoa-Fabian, 935 F.2d 1139, 1143 (10th Cir. 1991).  Thus, the district court “is in a unique position to evaluate a defendant’s acceptance of responsibility,” and its determination “is entitled to great deference on review.”  U.S.S.G. §3E1.1, cmt. n.5.

	In applying this standard of review, we recognize U.S.S.G. §3E1.1 generally does not apply in instances, like here, where a defendant elects to go to trial.  Specifically, the reduction for acceptance of responsibility “is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.”  U.S.S.G. §3E1.1, cmt. n.2.  Nevertheless, we also recognize that putting the government to its burden of proof does not automatically preclude consideration of a reduction, where, in rare instances, the defendant “clearly” demonstrates an acceptance of responsibility for his criminal conduct.  Id.

	Similarly, we have held an assertion of entrapment as a defense does not necessarily bar a defendant from receiving a two-level reduction for acceptance of responsibility so long as the defendant demonstrates an affirmative acceptance of responsibility for his criminal conduct.  See Eaton, 260 F.3d at 1237; United States v. Garcia, 182 F.3d 1165, 1173-74 (10th Cir.), cert. denied, 528 U.S. 987 (1999).  However, in instances where a defendant goes to trial and asserts an entrapment defense, “a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.”  U.S.S.G. §3E1.1, cmt. n.2.  See also Eaton, 260 F.3d at 1237.  Moreover, we have emphasized that the “simple assertion of the entrapment defense coupled with acknowledgment of the underlying criminal activity” does not mean a defendant is automatically entitled to a two-point reduction for acceptance of responsibility.  Garcia, 182 F.3d at 1173.

	In this case, the same judge who presided over the trial also presided over the sentencing hearing.  During the trial, he heard evidence from various witnesses, including Mr. Chavez, and was able to assess the credibility of those witnesses and weigh Mr. Chavez’s sincerity with respect to any remorse or contrition.  At the sentencing hearing, both counsel outlined Mr. Chavez’s pre-trial conduct, acknowledging he initially denied knowing anything about the drugs, but later directed agents to the drugs.  They also recounted Mr. Chavez’s testimony he sold the drugs for money and because he felt pushed or badgered into selling the drugs.  The probation officer also testified at the sentencing hearing, stating she did not attend Mr. Chavez’s trial, but given the pre-trial information, she did not think a reduction for acceptance of responsibility was appropriate.

	After listening to counsels’ sentencing arguments and the probation officer’s testimony, the district court expressly acknowledged Mr. Chavez was not precluded from a reduction for acceptance of responsibility because he went to trial.  Nevertheless, it stated:
[A]s pointed out by [the] Government, I am to consider principally his pretrial statements and conduct, but I also consider in this case the fact that this was a defense raised and the jury rejected that defense.

	And from the evidence that I heard, the defendant did engage in the criminal activity, and I would likewise have concluded that he was not induced improperly to that conduct, but rather had the motivation to make money.  Of course, he didn’t want to get caught, but once caught, his remorse of being caught or finding an excuse of why he did it rather than admitting that it was his own decision would not allow me to give him the benefit of accepting responsibility, because indeed he doesn’t accept responsibility or wants to blame others’ circumstances for why he engaged in the criminal activity.

	So I agree with the jury he was not entrapped and he should assume responsibility for his own conduct, which he has not done.  Therefore, I think it is appropriate that he not be given the benefit of the two-level reduction under Section 3E1.1.

(Emphasis added.)

	While the district court primarily discussed Mr. Chavez’s testimony at trial in support of his entrapment defense and motivations for selling drugs, we view the district court’s ruling as one not based solely on that testimony, but also based on Mr. Chavez’s pretrial conduct.  First, the district court expressly recognized its obligation to consider Mr. Chavez’s pretrial conduct in making an acceptance of responsibility determination.  While the district court did not expressly outline the facts of Mr. Chavez’s pretrial conduct, it is clear the district court was aware of that conduct, which Mr. Chavez acknowledged at the sentencing hearing and which included his initial denials of knowledge of any drugs and eventual act of leading agents to the drugs.

	Next, in making its determination, it is apparent the district court implicitly rejected Mr. Chavez’s counsel’s argument that, by eventually leading the agents to the drugs, Mr. Chavez sufficiently met his burden of proving by a preponderance of the evidence that he “clearly” accepted responsibility for his criminal conduct.  See U.S.S.G. §3E1.1, cmt. n.2.  This, taken together with the district court’s express observation Mr. Chavez failed to accept responsibility for his own criminal conduct, is certainly sufficient to determine a reduction for acceptance of responsibility was not warranted.

	Thus, contrary to Mr. Chavez’s contentions, it is clear the district court did not base its §3E1.1 determination solely or per se on the fact Mr. Chavez raised an entrapment defense.  Moreover, the district court carefully considered Mr. Chavez’s testimony in support of his entrapment defense and his stated reasons for selling the drugs.  In addition to Mr. Chavez’s testimony he felt induced to sell the drugs, the district court considered his testimony he felt motivated to make money.  Under the circumstances, the district court expressly made a factual assessment that Mr. Chavez’s real motivation was money, and therefore, his entrapment testimony was merely an attempt to switch the blame to another party and not accept responsibility for his greed or criminal conduct.  Thus, the mere fact Mr. Chavez raised the entrapment defense was not the reason the district court denied the §3E1.1 reduction.
	Finally, Mr. Chavez contends he admitted the essential elements of each offense, including the drug weights or quantities, and only went to trial in an effort to raise the entrapment defense; therefore, he claims he should receive an acceptance of responsibility reduction based on his admissions.  However, we note Mr. Chavez declined to stipulate to any facts before trial, causing the government to carry its burden of proving the essential elements of guilt, including presentation of expert testimony to establish the type, quantity and quality of the drugs Mr. Chavez sold or possessed, which had nothing to do with his entrapment theory or defense.  See James, 257 F.3d at 1185.  Similarly, while Mr. Chavez admitted at trial to selling or intending to sell the drugs, his admissions came only after he declined to stipulate to such facts and caused the government to first put forth evidence he sold or intended to sell drugs.  While this alone may not support the district court’s §3E1.1 reduction decision, it is certainly another factor supporting denial of a §3E1.1 reduction for acceptance of responsibility.  See U.S.S.G. § 3E1.1, cmt. n. 2.

	Given the circumstances of this case, the standard of review we apply, and the deference given to a sentencing judge’s evaluation of Mr. Chavez’s acceptance of responsibility, we sustain the district court’s conclusion a downward reduction for acceptance of responsibility under U.S.S.G. §3E1.1 did not apply in this case.

IV.  Conclusion
	For the reasons set forth above, we AFFIRM Mr. Chavez’s sentences.

						Entered by the Court:

						WADE BRORBY
						United States Circuit Judge