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United States v. Burns

*fn* submitted: July 29, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CHARLIE BURNS, AKA LEO BURNES CHURLEY, AKA CHARLEY L. BURNES, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Idaho. D.C. No. CR-90-0045-N-HLR. Harold L. Ryan, District Judge, Presiding

Before: Tang, Beezer and Kozinski, Circuit Judges.

MEMORANDUM

Charlie Burns appeals his sentence under the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G."), following a guilty plea, for possession with intent to distribute methamphetamine and cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), use of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), and possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). Burns contends that the district court erred by denying him a two-level downward adjustment in his base offense level for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo the district court's application of the Guidelines, while reviewing for clear error the factual finding that a defendant has not accepted responsibility for his criminal conduct. United States v. Hall, 952 F.2d 1170, 1171-72 (9th Cir. 1991).

"The Guidelines allow a two-level reduction in the defendant's total offense level if the 'defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct.'" United States v. Brady, 928 F.2d 844, 847 (9th Cir. 1991) (citation omitted). Section 3E1.1 does not automatically require a downward adjustment whenever a defendant pleads guilty. United States v. Morales, 961 F.2d 1428, 1430-31 (9th Cir. 1992); U.S.S.G. § 3E1.1, comment. (n.3). A defendant who truthfully answers the district court's questions concerning the factual basis of his guilty plea but is in a state of denial with regard to the reasons for that involvement is not entitled to a downward adjustment for acceptance of responsibility. See Morales, 961 F.2d at 1430-31; see also United States v. Martinez-Gonzalez, 962 F.2d 874, 878 (9th Cir. 1992) (upholding district court's denial of a downward adjustment where the truthfulness of defendant's "'self-serving' statements regarding her involvement in the offense and related conduct" were questionable).

Here, although Burns pled guilty to the underlying offenses, he told the probation officer that he was guilty of some of the offenses upon which he entered a guilty plea and not of others. Burns stated that the confidential informant manufactured stories concerning his involvement. Finally, Burns told the probation officer that he was tired of the "hassle" and entered his guilty plea to end the government's perserverance in prosecuting him. For these reasons, the probation officer recommended that Burns not receive a two-level reduction for acceptance responsibility. At sentencing, the district court expressly adopted the presentence report and found that Burns' account of his involvement in the offense did not "clearly demonstrate[] a recognition and affirmative acceptance of personal responsibility for all of his criminal conduct, especially in light of the fact that . . . [he] has failed to demonstrate a record of contrition for his extensive criminal conduct" (RT 9/9/91 at 26-27).

In light of these facts, the district court's finding was not clearly erroneous. See Martinez-Gonzalez, 962 F.2d at 878; see also Morales, 961 F.2d at 1431.*fn1 Therefore, the district court did not clearly err by determining that Burns was not entitled to a two-level downward adjustment of his offense level for acceptance of responsibility. See Martinez-Gonzalez, 962 F.2d at 878.

AFFIRMED.

Disposition

AFFIRME ...


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