                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   April 13, 2009
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 08-5121
          v.                                           (N.D. Oklahoma)
 LAMONT DESHUN THARPS,                         (D.C. No. 4:08-CR-0030-CVE-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, HOLLOWAY, and MCCONNELL, Circuit Judges.


      Lamont D. Tharps was convicted by a jury in the United States District

Court for the Northern District of Oklahoma of possessing crack cocaine, see

21 U.S.C. § 844(a), and being a felon in possession of a firearm, see 18 U.S.C.

§§ 922(g)(1), 924(a)(2). His sole issue on appeal relates to his sentence. He

argues that he was entitled to a reduction in his offense level under USSG

§ 3E1.1(a) for acceptance of responsibility. We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I.    BACKGROUND

      After being stopped by the police for motor-vehicle infractions on

January 3, 2008, Mr. Tharps was told to exit his car and was placed in handcuffs.

When asked whether “he had anything illegal on him,” he said, “yes, I got

something in my sleeve.” R. Vol. 2, Doc. 64 at 42–43. An officer then recovered

from his right sleeve a clear plastic bag containing crack cocaine. A search of the

glove compartment of his car revealed a loaded semiautomatic handgun and a box

of hollow-point ammunition. At the police station the officers discovered

“between [Mr. Tharps’s] butt cheeks” a clear plastic bag containing several

individually packaged lumps of crack cocaine, id. at 46, and $870 in cash hidden

beneath his ankle brace.

      Mr. Tharps was indicted on three counts: (1) possession of crack cocaine

with intent to distribute, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C); (2) possession

of a firearm in furtherance of a drug-trafficking crime, see 18 U.S.C.

§ 924(c)(1)(A)(i); (3) and being a felon in possession of a firearm, see id.

§§ 922(g)(1), 924(a)(2). The government called as witnesses the two officers who

arrested him and seized the drugs, money, firearm, and ammunition, and a third

officer who testified that the amount of crack cocaine, the way it was packaged,

the quantity of cash, and the presence of a firearm were all consistent with

planned distribution of the cocaine, not simple possession for personal use.

Because Mr. Tharps did not enter into any evidentiary stipulations, the

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government’s witnesses also included (1) a forensic scientist who testified that

the substance recovered weighed 4.56 grams and was crack cocaine; (2) the case

agent for the prosecution, a police detective, who testified that Mr. Tharps was

the registered owner of the car he was driving; (3) a special agent of the Bureau

of Alcohol, Tobacco, Firearms, and Explosives, who testified that the firearm and

ammunition were manufactured outside of Oklahoma and had traveled in

interstate commerce; (4) a booking officer at the jail where Mr. Tharps was

booked, who identified a card as having Mr. Tharps’s fingerprints; and (5) a

fingerprint analyst, who testified that the fingerprints on the card matched the

prints on a penitentiary packet that established Mr. Tharps’s prior felony

convictions.

      Mr. Tharps called two witnesses: First, he called the prosecution’s case

agent, who admitted that he had testified in an unrelated trial that 3.5 grams of

crack cocaine was consistent with personal use, not distribution. Mr. Tharps then

took the stand in his own defense. He acknowledged his past felony convictions,

stated that he was a crack addict who purchased crack every day, and admitted

that he kept a loaded firearm in his car. He denied, however, that he had ever

sold crack cocaine or that he had kept the gun in his car for use in selling cocaine.

The jury convicted him of only the charges he admitted: possession of crack

cocaine and possession of a firearm by a convicted felon.




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      The presentence report calculated Mr. Tharps’s combined offense level as

20. It made no adjustment for acceptance of responsibility. Mr. Tharps’s

sentencing memorandum, citing his trial testimony, objected that he was entitled

to a two-level reduction for acceptance of responsibility under USSG § 3E1.1.

The district court refused to grant the reduction, finding that Mr. Tharps had

failed to make pretrial statements accepting responsibility and had put the

government to its burden of proof at trial by denying the charges until the

government had rested its case.

      With a combined offense level of 20 and a criminal-history category of V,

Mr. Tharps’s guidelines sentencing range was 63 to 78 months. See USSG Ch. 5,

pt. A. The district court sentenced him to 63 months’ imprisonment.

II.   DISCUSSION

      A two-level reduction in offense level is warranted “[i]f the defendant

clearly demonstrates acceptance of responsibility for his offense . . . .” USSG

§ 3E1.1(a). We review a district court’s factual conclusions regarding acceptance

of responsibility for clear error, see United States v. Martin, 528 F.3d 746, 756

(10th Cir. 2008), bearing in mind that “[t]he sentencing judge is in a unique

position to evaluate a defendant’s acceptance of responsibility” and thus, “the

determination of the sentencing judge is entitled to great deference on review,”

USSG § 3E1.1 cmt. n.5.




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      “[A] defendant’s decision to exercise his constitutional right to trial will

commonly render him ineligible for a § 3E1.1 reduction.” United States v. Tom,

494 F.3d 1277, 1280 (10th Cir. 2007). This conclusion follows from application

note 2 of USSG § 3E1.1, which explicitly addresses this situation:

      This adjustment 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. Conviction by trial, however, does not
      automatically preclude a defendant from consideration for such a
      reduction. In rare situations a defendant may clearly demonstrate an
      acceptance of responsibility for his criminal conduct even though he
      exercises his constitutional right to trial. This may occur, for
      example, where a defendant goes to trial to assert and preserve issues
      that do not relate to factual guilt (e.g., to make a constitutional
      challenge to a statute or a challenge to the applicability of a statute to
      his conduct). In each such instance, however, a determination that a
      defendant has accepted responsibility will be based primarily upon
      pre-trial statements and conduct.

USSG § 3E1.1 cmt. n.2.

      Mr. Tharps argues that he accepted responsibility because at trial he

admitted to both offenses of which he was convicted. He points out that one of

those offenses (simple possession of cocaine) would not even have gone to the

jury if he had not requested a lesser-included-offense instruction with respect to

the charge of possession with intent to distribute; in other words, he says, he

would not have been convicted of any drug offense if the government had

proceeded as it wished. He contends that he failed to admit the offenses sooner

because he was having difficulty getting along with his original attorneys (his


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counsel at trial had been appointed only a week earlier), and that he had

demonstrated his acceptance of responsibility from the outset, when he told the

officers who stopped him that he had “something in [his] sleeve.” R. Vol. 2,

Doc. 64 at 42–43.

      We are not persuaded that the district court erred. We agree with

Mr. Tharps that a court could not properly hold against him that he failed to admit

the charges on which he was acquitted. But the district court did not do so in this

case. It refused to find that Mr. Tharps had accepted responsibility because (1) it

was “unaware of [Mr. Tharps] making a pretrial statement accepting

responsibility for the criminal conduct charged in the indictment,” id., Doc. 63 at

7; and (2) he had required the government to prove its case even on the offenses

that he later admitted during his testimony.

      With respect to the first basis of the district court’s decision, Mr. Tharps

argues on appeal that the court made a factual error. He suggests that his

informing the officers of the cocaine in his sleeve constituted an acceptance of

responsibility. But at sentencing he did not dispute the court’s finding regarding

pretrial statements, even though immediately after its ruling the court asked

Mr. Tharps’s counsel whether he “kn[e]w of any legal or factual issues i[n]

dispute.” Id. at 8. In any event, we are aware of no evidence that Mr. Tharps

admitted before trial that he possessed a firearm or was a convicted felon.




                                         -6-
      As for the second basis of the district court’s decision, the court was

correct to rely on Mr. Tharps’s requiring the government to prove its case. The

trial judge need not construe self-incriminatory testimony as an acceptance of

responsibility. As we stated in a similar case in which the defendant admitted at

trial the offenses of which he was convicted, “the district court could reasonably

have concluded that [the defendant’s] . . . admissions at trial were strategic, rather

than evidence of true acceptance of responsibility.” United States v. Collins, 511

F.3d 1276, 1280 (10th Cir. 2008). Mr. Tharps required the government to go

through every technical hoop to establish his guilt, forcing the government to call

multiple witnesses to prove that the substance found was cocaine, that the firearm

traveled in interstate commerce, and that his fingerprints matched those of a

previously convicted felon. It would not be unreasonable to infer that he decided

to admit simple possession only because (1) he saw that the government had not

slipped up in its case in chief and (2) he thought that his denial of possession with

intent to distribute would be more persuasive if he admitted simple possession.

See United States v. Herron, 432 F.3d 1127, 1138–39 (10th Cir. 2005) (defendant

who failed to stipulate to jurisdictional elements was properly denied adjustment

for acceptance of responsibility). The court was not required to believe Mr.

Tharps’s assertion that he would have pleaded guilty if he had gotten along better

with his attorneys. And his request for a lesser-included-offense instruction need

not be viewed as a gift from him to the prosecution; the request could readily

                                          -7-
have derived from a fear that if the jury were presented with an all-or-nothing

choice (guilty of possession with intent to distribute or not guilty), it would have

selected guilt. See Beck v. Alabama, 447 U.S. 625, 633–38 (1980) (defendant in

capital case is entitled to lesser-included-offense instruction).

       In sum, the district court did not commit clear error in finding that

Mr. Tharps failed to accept responsibility.

III.   CONCLUSION

       We AFFIRM Mr. Tharps’s sentence.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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