                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-2869
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              * Appeal from the United States
                                         * District Court for the
      v.                                 * Western District of Missouri.
                                         *
Steven K. Bundy,                         *      [UNPUBLISHED]
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: January 15, 2002

                                   Filed: February 21, 2002
                                    ___________

Before LOKEN, RICHARD S. ARNOLD, and MURPHY, Circuit Judges.
                           ___________

PER CURIAM.

      Steven K. Bundy appeals his 51-month sentence for robbing a Kansas City
bank in violation of 18 U.S.C. § 2113(a). He argues that he is entitled to a sentencing
reduction for acceptance of responsibility because his trial counsel’s inaccurate
sentencing advice caused him to reject a favorable plea agreement. We affirm.

       Bundy’s first trial ended in a mistrial due to a hung jury. The jury found him
guilty after a second trial, and his Presentence Investigation Report recommended a
guidelines sentencing range of 51 to 63 months in prison. Bundy appeared at the
sentencing hearing represented by new appointed counsel. He testified that trial
counsel had persuaded him to reject a plea agreement proposed by the government
because his “worst case scenario” if he went to trial and lost would be a sentence of
26 months. Instead, he learned after his conviction that his least possible sentence
with a guilty plea would have been 37 months. Bundy testified that he would have
pleaded guilty had counsel provided accurate sentencing advice. Bundy also
expressed remorse and admitted for the first time that he was guilty of the bank
robbery offense. Based upon this testimony, defense counsel urged the court to grant
a sentence reduction for acceptance of responsibility.

       The district court1 denied the reduction and sentenced Bundy to 51 months in
prison, the bottom of his guidelines sentencing range. The court correctly concluded
that the sentencing record would not permit a finding of ineffective assistance absent
trial counsel’s testimony as to the sentencing advice he in fact gave prior to trial.
“Without such a finding,” the court found “no basis for awarding acceptance of
responsibility.” We agree.

       The adjustment 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. Here, Bundy put the government to
its burden of proof at two trials, and his girlfriend presented an alibi defense at the
second trial. Thus, the district court’s finding that Bundy’s admission and remorse
came too late to warrant an acceptance adjustment was not clearly erroneous. See




      1
      The HONORABLE SCOTT O. WRIGHT, United States District Judge for the
Western District of Missouri.

                                         -2-
United States v. Griffin, 154 F.3d 762, 764 (8th Cir. 1998) (no clear error in denying
acceptance adjustment to defendant who pleaded guilty after an initial trial).

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

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




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