                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 08 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-50565

             Plaintiff - Appellee,               D.C. No. 2:08-cr-00695-ODW-1

  v.
                                                 MEMORANDUM *
PETER HARMON,

             Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Otis D. Wright, District Judge, Presiding

                          Submitted September 2, 2009 **
                            San Francisco, California

Before: HUG, SKOPIL and BEEZER, Circuit Judges.

       Criminal defendant Peter Harmon appeals the district court’s sentence of

four months imprisonment and three years of supervised release following his plea

of guilty to possession of stolen mail under 18 U.S.C. § 1708. Harmon contends


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
that he was entitled to a reduction in sentence under the section 3E1.1 of the

federal sentencing guidelines for accepting responsibility for his actions. We have

jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review the

district court’s factual determination of whether a defendant has accepted

responsibility for clear error. United States v. Wilson, 392 F.3d 1055, 1061 (9th

Cir. 2005).

      The facts of this case are known to the parties. We do not repeat them.

      Under the federal sentencing guidelines, a criminal defendant is entitled to a

downward adjustment if he clearly accepts responsibility for all of his relevant

conduct. Id. A plea of guilty is evidence of acceptance of responsibility, but it

may be outweighed by a defendant’s inconsistent conduct. U.S.S.G. § 3E1.1 app.

n.3. The defendant carries the burden of proof in demonstrating acceptance of

responsibility. United States v. Innie, 7 F.3d 840, 848 (9th Cir. 1993).

      The district court did not clearly err when it determined that Harmon had not

clearly accepted responsibility. The district court found that Harmon had not

clearly accepted responsibility despite his admission and guilty plea because of his

pattern of missing appointments with probation officers and showing up late to

court, if at all. The court found this behavior inconsistent with acceptance of

responsibility and declined to apply a reduction. This determination is entitled to


                                          2
“great discretion” and is amply supported by the record. See Wilson, 392 F.3d at

1061 (noting we “afford the district court great deference because of its unique

position to evaluate a defendant’s acceptance of responsibility”) (internal quotation

marks omitted).

      AFFIRMED.




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