                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               FEB 9 2004
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                          No. 03-7072
 GARY L. GAINES,                                       (D.C. No. 02-CR-63-P)
                                                          (E.D. Oklahoma)
          Defendant-Appellant.




                                ORDER AND JUDGMENT*


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

      Defendant Gary L. Gaines appeals the sentence imposed after his plea of guilty to

aggravated sexual abuse of a child on Indian land, 18 U.S.C. §§ 2241(c), 2246. We



      *
        This order and judgment is not binding precedent, except under the doctrines of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.
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

       The district court sentenced Gaines to a term of imprisonment of 168 months,

followed by 60 months of supervised release. The sentence was at the high end of the

guideline range and was based on an offense level of 33 and a Category I criminal history.

The sole question on appeal is whether the district court erred in not reducing Gaines’

offense level by three points for acceptance of responsibility pursuant to U.S.S.G.

§ 3E1.1(a) and (b)(2). The result of this adjustment would have been a sentencing range

of 97-121 months.1

       The presentence report prepared after Gaines entered his guilty plea recommended

a three-point reduction in offense level for acceptance of responsibility. The government

did not object to the presentence report. Based on Gaines’ statements at the sentencing

hearing, however, the district court found that he had not accepted responsibility. During

his allocution, Gaines stated:

              I agree with the horribility [sic] of this crime. This is absolutely the
       most horrible crime that I ever imagine anybody doing, and I’m very sorry
       for what did happen.
              The reason that I was wanting a psychiatric evaluation was to
       determine my mental health at the time of this accident because I have some
       glands that are shut down in my head and I was hit when I was working on
       building that car wash right next door to where we were staying.

ROA, Vol. III at 48-49. At this point, Gaines had an off-the-record discussion with his


       1
         “Adjustments are changes to the total offense level calculated under the
guidelines, while a departure is a sentence imposed outside the designated guideline
range.” United States v. Walling, 982 F.2d 447, 449 (10th Cir. 1992).

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attorney. He then continued:

       I just . . . he told me if I kept continuing on with the way I was going that
       you might find that I was not accepting responsibility for what had
       happened and you might add some more points onto it, but – and there has
       been several situations in this case that I have not been comfortable with
       this – with his counsel.
                I just believe that I have had some things that go wrong in my head
       that – I normally do things, but at the same time I would not do them
       normally. For instance, I was hit in the head when I was on that
       construction site and I had a CAT scan after I – several years later and they
       said – I mean, I had a CAT scan and they said, before this accident
       happened in the construction site, that if I got hit in the head that I could do
       things that I normally wouldn’t do.

Id. at 49-50. The district court asked Gaines if he wanted to request a withdrawal of his

plea and/or different counsel. After speaking with his attorney, Gaines informed the court

that he was satisfied with his attorney and that he did not seek withdrawal of his plea.

The court found that Gaines had not accepted responsibility and, therefore, was not

entitled to a reduction under § 3E1.1.

       Gaines argues his statements at sentencing were akin to a request for a “diminished

capacity departure” and, according to Gaines, were not inconsistent with acceptance of

responsibility. A defendant who enters a guilty plea is not entitled to an adjustment of

offense level for acceptance of responsibility as a matter of right. See U.S.S.G. § 3E1.1,

application n.3. Gaines had the burden to prove by a preponderance of the evidence that

he had accepted responsibility. See United States v. Spedalieri, 910 F.2d 707, 712 (10th

Cir. 1990). Acceptance of responsibility is a factual question and our review of the

court’s determination is limited to clear error. See United States v. Hawley, 93 F.3d 682,

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689 (10th Cir. 1996). “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.” U.S.S.G. § 3E1.1, application

n.5. The district court is “in a better position than the appellate court to weigh the

defendant’s sincerity of remorse and contrition.” United States v. Ochoa-Fabian, 935

F.2d 1139, 1143 (10th Cir. 1991). “Because of our deference to the trial court’s

assessment of credibility and the clearly erroneous standard we apply, the judgment of the

district court on this issue is nearly always sustained.” United States v. Whitehead, 912

F.2d 448, 451 (10th Cir. 1990).

       We are not persuaded that the district court committed clear error in refusing to

adjust Gaines’ offense level downward for acceptance of responsibility. Gaines’

statements at sentencing were more in the nature of an attempt to mitigate his conduct

than an acceptance of full responsibility or an expression of remorse for his conduct.

       AFFIRMED.

                                           Entered for the Court

                                           Mary Beck Briscoe
                                           Circuit Judge




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