                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          May 4, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-4243
          v.                                             (D. Utah)
 ELIAS SALAZAR,                                 (D.C. No. 2:04-CR-819-TC)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, HARTZ, and TYMKOVICH, Circuit Judges.


      Elias Salazar appeals from his sentence on a conviction for possession of a

firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). He contends that the

district court should have granted him a downward adjustment for acceptance of

responsibility under United States Sentencing Guidelines (USSG) § 3E1.1 (2005).




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
We disagree and affirm the sentence. We have jurisdiction under 18 U.S.C.

§ 3742(a)(2) and 28 U.S.C. § 1291.

      Mr. Salazar had been arrested for firing a handgun from a moving car at a

house after he had been disinvited from a party there. At trial Mr. Salazar either

stipulated to or testified to each of the elements of the charged offense—that he

possessed a firearm, it had traveled in interstate commerce, and he had previously

been convicted of a crime punishable by imprisonment for more than one year.

But he defended the charge on the ground that possession of the gun was justified

because he fired it in self-defense. Witnesses for the government disputed his

version of events.

      The jury convicted Mr. Salazar. At sentencing he argued that he should be

given an adjustment for acceptance of responsibility because he had admitted all

the facts necessary to convict him. See USSG § 3E1.1 (providing for two-level

decrease in offense level “[i]f the defendant clearly demonstrates acceptance of

responsibility for his offense”).

      Application note 2 to USSG § 3E1.1 states that the provision is not

intended to apply to defendants who exercise their right to trial, although “in rare

situations” the adjustment still may apply, as when a defendant “goes to trial to

assert and preserve issues that do not relate to factual guilt (e.g., to make a

constitutional challenge . . . .).” The district court emphasized that Mr. Salazar’s


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“justification defense is not really a constitutional challenge[, i]t was a factual

challenge.” R. Vol. IV at 11. Moreover, the court expressed its belief that he had

lied on the witness stand. Therefore, in the court’s view, this was not one of the

rare situations in which the adjustment might apply. The court sentenced him to

77 months in prison.

      “Whether the facts of a particular case warrant a reduction for acceptance

of responsibility is a question of fact that we review under the clearly erroneous

standard.” United States v. Dazey, 403 F.3d 1147, 1172 (10th Cir. 2004). “‘The

sentencing judge is in a unique position to evaluate a defendant's acceptance of

responsibility. For this reason, the determination of the sentencing judge is

entitled to great deference on review.’” Id. (quoting USSG § 3E1.1 cmt. n.5).

      We agree with the district court that there were no exceptional

circumstances to make this one of the “rare situations” in which the adjustment

applies despite the defendant’s having gone to trial. Indeed, Mr. Salazar’s perjury

at trial could in itself present a bar to this adjustment. See United States v.

Sarracino, 340 F.3d 1148, 1174 (10th Cir. 2003) (“[F]alse testimony that results

in an enhancement for obstruction of justice generally is inconsistent with an

adjustment for acceptance of responsibility.”); USSG § 3E1.1 cmt. n.4 (perjury or

other obstruction of justice ordinarily indicates that the defendant has not

accepted responsibility).


                                          -3-
      Because the district court could properly find on this record that

Mr. Salazar had not accepted responsibility for his actions, we AFFIRM the

sentence below.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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