                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-3351
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the Northern
                                         * District of Iowa.
Minh Van Nguyen,                         *
                                         *
             Appellant.                  *
                                    ___________
                                         *

                              Submitted: May 13, 2003

                                   Filed: August 7, 2003
                                    ___________

Before MORRIS SHEPPARD ARNOLD, HANSEN, and SMITH, Circuit Judges.
                         ___________

SMITH, Circuit Judge.

       Minh Van Nguyen appeals his sentence for conspiracy to distribute and
possession with intent to distribute more than 500 grams of methamphetamine.
Specifically, Nguyen challenges the district court's1 denial of his request for a three-
level reduction for acceptance of responsibility. For the reasons stated herein, we
affirm.



      1
        The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
                                       I. Facts
      Nguyen contends he adequately accepted responsibility to qualify for a reduced
sentence. The facts show otherwise. The government first arraigned and detained
Nguyen on March 31, 2000, in the Northern District of Iowa. Following a second
detention hearing, the court released him on electronic monitoring, subject to home
detention. The court set trial for November 20, 2000. Just under a month before trial,
Nguyen absconded.

       According to his own account, Nguyen stayed on the run for over fifteen
months. On January 18, 2002, police arrested Nguyen in Sioux City, Iowa, on an
unrelated misdemeanor charge. Nguyen did not reveal his identity to the police, but
instead used his brother's name and identification information when the police booked
him. Unaware of Nguyen's true identity, the Sioux City police released him. Five days
later, Kansas highway patrolmen stopped and arrested Nguyen. Nguyen again used
his brother's name and identification information, but the officers soon discovered his
true identity.

      Following Nguyen's arrest in Kansas, the Iowa federal district court
rescheduled trial for April 29, 2002. The government prepared for trial. However,
with only four days remaining before trial, Nguyen pleaded guilty. The district court
accepted his plea.

       At sentencing, the only disputed issue was whether Nguyen qualified for an
offense-level reduction for acceptance of responsibility. Nguyen gave a safety-valve
debriefing in an attempt to qualify for the judicial safety-valve reduction under 18
U.S.C. § 3553(f) (2000). The presentence investigation report did not provide for an
adjustment for acceptance of responsibility. In fact, the government recommended a
two-level upward adjustment for obstruction of justice because Nguyen absconded
while on pretrial release. Task Force Officer Dave Drew testified that he thought
Nguyen had been honest in his debriefing, but that Nguyen had not provided the

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officers with any new or useful information. Nguyen was unable to persuade the
district court that his case merited a reduction. The district court found that Nguyen
engaged in an ongoing effort to obstruct justice and did not voluntarily surrender after
absconding while on pretrial release. The district court sentenced Nguyen to 188
months' imprisonment followed by five years of supervised release. Nguyen now
appeals the denial of the reduction for acceptance of responsibility.

                                     II. Analysis
       Nguyen argues that the district court erred in denying his request for a three-
level sentence reduction for acceptance of responsibility. Ordinarily, a two-level
enhancement for obstruction of justice precludes the reduction Nguyen requested.
However, Nguyen argues he should be entitled to the reduction because his case
presents "extraordinary" circumstances sufficient to overcome the preclusion. These
circumstances, Nguyen argues, include his admission of wrongdoing by pleading
guilty to the charged crime, providing information–including personally detrimental
information–to the authorities to aid in the investigation of other drug crimes, and
cooperating with the police. He further asserts that although he obstructed justice by
absconding, he subsequently redeemed himself by pleading guilty and cooperating
with police, thus distinguishing his case from others in which the courts denied the
reduction. We disagree.

       We review construction of the Guidelines de novo. United States v. Esparza,
291 F.3d 1052, 1054 (8th Cir. 2002). We review the district court's findings with
respect to the acceptance of responsibility reduction and the obstruction of justice
increase for clear error. United States v. Boettger, 316 F.3d 816, 817 (8th Cir. 2003);
United States v. Ervasti, 201 F.3d 1029, 1043 (8th Cir. 2000). A district court's
factual determination on whether a defendant has demonstrated acceptance of
responsibility is entitled to great deference and should be reversed only if it is so
clearly erroneous as to be without foundation. United States v. Arellano, 291 F.3d
1032, 1034–1035 (8th Cir. 2002); United States v. Ngo, 132 F.3d 1231, 1233 (8th Cir.

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1997). See also U.S. Sentencing Guidelines Manual § 3E1.1, cmt. n.5 (2002)
(determination of sentencing court entitled to great deference). A defendant has the
burden to show that he is entitled to a reduction for acceptance of responsibility. Ngo,
132 F.3d at 1233.

       After a guilty plea, a defendant may obtain as much as a three-level reduction
for cooperative conduct. To qualify for a two-level reduction, he must "clearly
demonstrate acceptance of responsibility." U.S. Sentencing Guidelines Manual
(hereinafter U.S.S.G.) § 3E1.1 (2002). An additional one level decrease can be
gained–for a total of three–if the defendant timely provides complete information to
the government concerning his involvement in the offense and timely notifies the
authorities of his intention to enter a guilty plea. To be timely, the plea should enable
the government to avoid unnecessary trial preparation and aid the court to allocate its
resources efficiently. Clear acceptance of responsibility generally is not present when
a defendant's conduct results in an enhancement for obstruction of justice under
U.S.S.G. § 3C1.1 (2002) as it did here. U.S.S.G. § 3E1.1, cmt. n. 4. In certain
"extraordinary cases," the court may adjust for both provisions. See United States v.
Honken, 184 F.3d 961, 969 (8th Cir. 1999). However, these cases are "extremely
rare." Id.

       Nguyen's case is not "extraordinary," and we find no error in the district court's
refusal to grant him a two- or three-level criminal offense level reduction. In Honken,
we addressed factors that make a case "extraordinary." There the district court
determined that the case was extraordinary because the defendant had not obstructed
justice after he pleaded guilty, although he had obstructed justice prior to pleading
guilty.2 However, on appeal we held that the district court applied an inconsistent

      2
        We noted that the district court adopted a "bright-line definition" of
"extraordinary case" when it pulled language from a Ninth Circuit case, United States
v. Hopper, 27 F.3d 378 (9th Cir. 1994), that indicated that lack of obstruction
between the guilty plea and sentencing qualifies as an "extraordinary case" subject

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legal standard in light of the plain language of the Guidelines commentary and the
prior decisions of this court and other courts of appeal.

        To better define the qualifications of an "extraordinary case," we listed various
considerations for the district court to use to determine whether the reduction could
apply. We noted that although "there is no magic formula," the district court should
consider the timing and nature of the defendant's obstructive conduct; the degree of
his acceptance of responsibility; whether his obstruction of justice was an isolated
and early incident; whether he voluntarily terminated his obstructive conduct;
whether he admitted and recanted his obstructive conduct; and whether he assisted
in the investigation of his and others' offenses. Honken, 184 F.3d at 968–69; see also
United States v. Stoltenberg, 309 F.3d 499, 500 (8th Cir. 2002). We further explained
that because the Sentencing Guidelines do not define the phrase "extraordinary case,"
the term should be given its ordinary meaning.3 Finally, we concluded that "a
defendant must show more than a guilty plea and a cessation of obstructive conduct
to establish an "extraordinary case" for purposes of § 3E1.1, application note 4."
Honken, 184 F.3d at 970.



to the three-level reduction in U.S.S.G. § 3E1.1.
      3
        To define "extraordinary case," we referred to Webster's Dictionary, Black's
Law Dictionary, and other sections of the Sentencing Guidelines for a common
definition of "extraordinary." We stated:

      Contrary to the plain meaning of "extraordinary" the district court
      standard does not require the obstructive defendant to do anything that
      is "more than ordinary," or to go "beyond what is usual, regular,
      common, or customary" to earn an acceptance of responsibility
      downward departure. Webster's Dictionary at 807.

Honken, 184 F.3d at 970.


                                          -5-
       Simply put, there is nothing extraordinary about Nguyen's case. In light of the
Honken factors, Nguyen's argument fails.4 Nguyen's obstruction was ongoing; he did
not voluntarily turn himself in; he used his brother's identification on two occasions
to avoid arrest and return to Iowa; and he did not clearly accept responsibility for, or
recant, his obstructive conduct. In addition, Nguyen did not plead guilty to the
charged crime until four days before trial, thus making it an "eleventh-hour jailhouse
conversion" before which the prosecution had to begin preparing for trial. United
States v. Johnston, 973 F.2d 611, 614 (8th Cir. 1992).5

      The sentence is affirmed.




      4
        See also United States v. Dortch, 923 F.2d 629 (8th Cir. 1991) (court
determined case was not extraordinary although defendant voluntarily surrendered
to authorities, acquiesced in the forfeiture of his vehicle, cooperated with the
probation officer, withdrew his motion to suppress evidence and statements, and
entered a guilty plea because defendant also made false exculpatory statements at the
time of his arrest, justified his involvement with cocaine as a means of supporting his
family, and did not supply any information about others.); Johnston, 973 F.2d 611
(court upheld district court's denial of reduction although defendant pleaded guilty
and did not obstruct justice after the plea because defendant obstructed justice by
destroying marijuana plants, fleeing from Iowa, and attempting to procure a false
alibi.); Boettger, 316 F.3d 816 (court denied reduction for acceptance of
responsibility although enhancement for obstruction of justice was not a factor
because defendant absconded twice during the course of his case and continued to use
drugs while awaiting trial.)
      5
        This is particularly important because we have noted that pleading guilty is
not necessarily motivated by remorse or "clear acceptance of guilt," but instead "may
be motivated by a myriad of factors." Ervasti, 201 F.3d at 1044.

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A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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