                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        June 19, 2006
                                   TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
 v.                                                      No. 05-3453
                                                         No. 05-3454
 JO SE JAV IER LO ZA ,                        (D.C. No. 03-CR-10122-01-W EB)
                                              (D.C. No. 04-CR-10047-01-W EB)
          Defendant-Appellant.                           (D. Kansas)




                                OR D ER AND JUDGM ENT *


Before H ENRY, BRISCO E, and O’BRIEN, Circuit Judges.




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

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is,

therefore, ordered submitted without oral argument.

      Jose Javier Loza appeals his sentence of 78 months, contending that the

district court erred in declining to reduce his offense level for acceptance of


      *
        This order and judgment is not binding precedent, except under the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.
responsibility pursuant to § 3E1.1 of the 2003 edition of the United States

Sentencing Guidelines (“U.S.S.G”). Although the court had enhanced his offense

level for obstruction of justice pursuant to U.S.S.G. § 3C1.1, Loza seeks a remand

for resentencing for a term not to exceed the statutory mandatory minimum of 60

months. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm

Loza’s sentence.

                                         I.

      Loza was indicted for possession with intent to distribute more than 100

kilograms of marijuana in violation of 21 U.S.C. § 841. United States v. Loza,

No. 03-CR-10122-01-W EB (D. Kan. filed July 1, 2003). Loza was released on

bond, but he failed to appear, and he fled to M exico where he remained for six

months. On February 19, 2004, the United States M arshals Service arrested Loza

when he attempted to reenter the United States from M exico. Loza was

subsequently indicted for failing to appear in court in violation of 18 U.S.C. §

3146(a)(1). United States v. Loza, No. 04-CR-10047-01-W EB (D. Kan. filed

M ar. 9, 2004).

      Loza pleaded guilty to both charges. The Presentence Investigation Report

(“PSR”) calculated Loza’s total offense level of 28 and his criminal history

category of I, which corresponds to a sentencing range of 78-97 months. The

PSR recommended a two-level enhancement for obstruction of justice pursuant to

U.S.S.G. § 3C1.1. The PSR recommended against a reduction for acceptance of

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responsibility pursuant to U.S.S.G. § 3E1.1. Loza objected to the PSR.

      On September 13, 2004, the district court sentenced Loza to 78 months’

imprisonment, denying a reduction of offense level for acceptance of

responsibility.

      Loza appealed his sentence, and we remanded for resentencing under

United States v. Booker, 543 U.S. 220 (2005), because the district court applied

the Guidelines as mandatory. United States v. Loza, 147 Fed. Appx. 739, 741

(10th Cir. 2005). W e did not address Loza’s argument regarding the district

court’s denial of a reduction for acceptance of responsibility.

      On November 14, 2005, the district court resentenced Loza, and it filed a

memorandum and order on November 16, 2005. 1 The district court sentenced

Loza to 78 months’ imprisonment. From the district court’s memorandum, we

know that the district court found that there was some evidence that Loza

accepted responsibility because he entered a guilty plea and truthfully admitted

his offense conduct. The district court also found that Loza sought to avoid




      1
        In the record on appeal, Loza designated the district court’s memorandum
and order, but he did not designate a transcript of the resentencing hearing. The
government observed that the “defendant has not designated a transcript of the re-
sentencing hearing as part of the record before this Court.” Aple. Br. at 3 n.1.
Loza’s failure to supply the necessary record provides an alternate basis for
affirming the sentence. See 10th Cir. R. 10.3(B). Our rules required Loza to
provide a copy of the transcript from the resentencing hearing. See 10th Cir. R.
10.3(D)(1). Although Loza designated the district court’s memorandum for the
record, the resentencing transcript is also an essential part of the record.

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responsibility by fleeing to M exico and remaining a fugitive for six months until

he was apprehended at the border when trying to reenter the United States. The

district court concluded that Loza’s conduct in fleeing and remaining a fugitive

until apprehended outweighed his subsequent “acceptance of responsibility” as

evidenced by his guilty plea. As a result, the court further concluded that this

was not an extraordinary case for applying both a reduction for acceptance of

responsibility and an enhancement for obstruction of justice.

                                         II.

      After Booker, we review the district court’s factual findings at sentencing

for clear error and its legal conclusions regarding the application of the

Guidelines de novo. E.g., United States v. W olfe, 435 F.3d 1289, 1295 (10th Cir.

2006). If we conclude the district court correctly determined the relevant

guideline range, and if the defendant is subsequently sentenced to a term of

imprisonment within that range, the sentence imposed is subject to a rebuttable

presumption of reasonableness when review ed on appeal. United States v. Kristl,

437 F.3d 1050, 1054 (10th Cir. 2006).

      A. Constitutional Booker error

      Loza argues that the district court violated his Sixth Amendment rights by

making factual findings at sentencing without a jury determination. Loza’s

argument is without merit.

      After Booker, a district court may make factual findings when addressing

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requests for sentence adjustments, so long as the court does not view the

Guidelines as mandatory. E.g., United States v. Visinaiz, 428 F.3d 1300, 1316

(10th Cir. 2005), cert. denied, 126 S. Ct. 1101 (2006). In this case, the district

court regarded the Guidelines as advisory, and it considered the sentencing

factors in 18 U.S.C. § 3553(a). Thus, the district court did not commit

constitutional Booker error, and its judicial fact-finding concerning acceptance of

responsibility is permissible.

      B. Reduction of offense level for acceptance of responsibility

      Loza next argues that the district court erred in denying a reduction of

offense level for acceptance of responsibility. The district court’s finding that

Loza did not accept responsibility was not clearly erroneous.

      A reduction for acceptance of responsibility is appropriate “[i]f the

defendant clearly demonstrates acceptance of responsibility for his offense.”

U.S.S.G. § 3E1.1. “Conduct resulting in an enhancement under § 3C1.1

(Obstructing or Impeding the Administration of Justice) ordinarily indicates that

the defendant has not accepted responsibility for his criminal conduct. There

may, however, be extraordinary cases in which adjustments under both §§ 3C1.1

and 3E1.1 may apply.” U .S.S.G. § 3E1.1, cmt. 4 (2003) (emphasis added).

      W hile we have recognized the exception for extraordinary cases, we give

“great deference” to the district court’s determination whether a defendant

accepted responsibility. U.S.S.G. § 3E1.1, cmt. 5 (2003) (“The sentencing judge

                                        -5-
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.”); United States v. Haw ley, 93 F.3d 682, 689 (10th Cir.

1996). Given our great deference to the district court’s findings regarding

acceptance of responsibility, “[w]e have continually upheld a district court’s

refusal to grant an acceptance of responsibility adjustment where the defendant’s

actions merited an enhancement for obstruction of justice.” United States v.

Proffit, 304 F.3d 1001, 1009 (10th Cir. 2002) (citing seven cases).

      Loza contests the district court’s findings concerning acceptance of

responsibility, advancing nine reasons why his case is extraordinary:

      1. The conduct resulting in the obstruction enhancement occurred
      before plea to either case.

      2. At the time of the stop, M r. Loza gave Trooper Rule the material
      information he had regarding his transportation of the marijuana.

      3. M r. Loza accepted responsibility for the marijuana charges in all
      respects, (except for his failure to appear).

      4. M r. Loza accepted responsibility for his absconding at the first
      opportunity by agreeing to plead in order to allow M s. Schmidt to
      represent him on both cases. The Government knew nearly from
      inception of Case Tw o that it would not have to prepare for any
      motions or a trial on Case Tw o.

      5. The G overnment knew before the Suppression Hearing on Case
      One that if M r. Loza lost his motion, it would not have to prepare for
      trial. Had M r. Loza won the Suppression motion, the Government
      would have had no trial preparation. Either way, the Government
      had no reasonable expectation that M r. Loza’s case was proceeding
      to trial.

                                        -6-
      6. M r. Loza lost the Suppression M otion and immediately
      communicated his desire to plead guilty as charged and as previously
      represented to the Government. He did not even ask the Government
      for a plea agreement. He did not contractually waive any of his
      constitutional rights.

      7. M r. Loza never asked the Government for any accommodation as
      to charges or downward departures in sentencing.

      8. M r. Loza has virtually no criminal history prior to this encounter.

      9. M r. Loza offered to be debriefed by Government authorities.

Aplt. Br. at 14-15.

      After full review of the district court’s rulings and the factual context

within which it made those rulings, we w ill not disturb the district court’s

conclusion that this was not an extraordinary case warranting a reduction for

acceptance of responsibility since Loza received an enhancement for obstruction

of justice. Some of Loza’s conduct, such as pleading guilty, reflects acceptance

of responsibility. But some of Loza’s conduct, such as fleeing to M exico and

remaining a fugitive for six months until apprehended, shows a failure to accept

responsibility. W e give great deference to the district court’s finding that Loza

did not accept responsibility because his actions in fleeing while on bond

outweighed his subsequent guilty pleas. The district court’s findings were not

clearly erroneous.

      Our decision in U nited States v. Haw ley supports our conclusion. In

Hawley, we held that the defendant’s violation of an appearance bond was



                                        -7-
evidence of failure to accept responsibility, and that this evidence is sufficient

support for the district court’s decision to deny the reduction. 93 F.3d at 689-90.

Hawley was arrested and released on bond. He failed to appear at his

arraignment, and he was later arrested in Arkansas and returned to Kansas by law

enforcement officers. Id. at 685. Hawley then pleaded guilty. At sentencing, the

district court added a two-level enhancement for obstruction of justice and

concluded that the defendant was not entitled to a downward adjustment for

acceptance of responsibility. On appeal, we rejected his argument that the district

court erred in denying a reduction for acceptance of responsibility. Similarly,

Loza’s conduct in fleeing to M exico is evidence of his failure to accept

responsibility, and it was a proper consideration when the district court applied

the Sentencing Guidelines to the facts presented here.

      Loza cites United States v. Bradford, 423 F.3d 1149 (10th Cir. 2005), but

this case is not on point. In Bradford, the district court imposed a two-level

enhancement for obstruction of justice because the defendant absconded from

supervision after her arrest. The district court also imposed a three-level

reduction for acceptance of responsibility. Id. at 1155. The defendant in

Bradford does not raise the issue presented here. In Bradford, the defendant

raised a Booker issue by arguing that the court erred in imposing an obstruction

of justice enhancement because the jury did not find, and the defendant did not

admit as a part of her guilty plea, the facts that would support the district court’s

                                         -8-
conclusion that Bradford had absconded. Id. at 1160.

      W e AFFIRM Loza’s sentence.


                                            Entered for the Court


                                            M ary Beck Briscoe
                                            Circuit Judge




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