                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                 _____________

                                 No. 01-1594SD
                                 ____________

United States of America,              *
                                       *
               Appellee,               * On Appeal from the United
                                       * States District Court
                                       * for the District of
      v.                               * South Dakota.
                                       *
Jeff Sweesy,                           * [To Be Published]
                                       *
               Appellant.              *
                                  ___________

                             Submitted: October 16, 2001
                                Filed: November 27, 2001
                                 ___________

Before BYE, BRIGHT, and RICHARD S. ARNOLD, Circuit Judges.
                            ___________

PER CURIAM.


     Jeff Sweesy was convicted by a jury of attempting to manufacture
methamphetamine. The District Court1 sentenced him to 13 years and 8 months (140
months) in prison, and he appeals.




      1
      The Hon. Karen E. Schreier, United States District Judge for the District of
South Dakota.
       We think the issues are familiar and do not require extended discussion.
Defendant first asserts that the evidence was insufficient to make out a jury question
on all of the elements of the crime of attempt to manufacture methamphetamine. The
government’s evidence was not abundant, but it was sufficient. Defendant was in
possession of three of the four ingredients necessary for manufacture. On a recent
occasion, he had sold methamphetamine that had recently been manufactured by
someone. He knew how to manufacture it, and had discussed methods of
manufacturing with another person. We think a reasonable jury could have found
from this evidence, along with the other evidence in the record, that the defendant
possessed the ingredients for manufacture, together with some other drug
paraphernalia, that this possession was an affirmative step towards the completion of
the crime of manufacturing, and that defendant intended to complete the crime, and
would have done so had he not been interrupted by a search.

       Defendant’s principal other argument is that the District Court abused its
discretion in denying him a reduction in his offense level for acceptance of
responsibility. The defendant pleaded not guilty and went to trial. He denied two of
the essential elements of the crime, intent and an affirmative step towards the
completion of the underlying offense. We recognize that this is not an absolute bar
to the reduction requested. It is, however, primarily for the district judge, the person
on the spot, to make a moral judgment as to the defendant’s level of contrition. Here,
defendant not only denied essential elements of the crime, he contested some of the
government’s subsidiary evidentiary facts. This was the District Court’s call. We see
no abuse of discretion.

      Affirmed.




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BRIGHT, Circuit Judge, dissenting.

      I concur in the conviction but dissent on the imposed sentence. Jeff Sweesy
is entitled to a credit for acceptance of responsibility under the Sentencing
Guidelines.

       In this case, the undisputed facts disclose that Mark Bender, Sweesy's
neighbor, gave Sweesy a box of chemicals as a Christmas present in December 1999.
On December 28, 1999, Game, Fish and Parks officials had a report of illegal
poaching on Sweesy's property. Police executed a search warrant on Sweesy's house.
The search uncovered a glass beaker in his living room and drug paraphernalia
located in places throughout the house. No methamphetamine, chemicals to make
methamphetamine, or methamphetamine lab were found. The police apparently did
not discover or seize the box of chemicals. Police arrested and charged Sweesy with
a gaming violation.

      On January 3, 2000, Sweesy contacted the authorities regarding the chemicals
and glassware. After obtaining a second search warrant, police returned to Sweesy's
home. Sweesy directed officers to the location of the chemicals. Police then arrested
Sweesy.

       Prior to trial, Sweesy admitted to possessing the chemicals and drug
paraphernalia and knowing how to manufacture methamphetamine. However, he
denied any intent to manufacture methamphetamine. At trial, the government
presented evidence that Sweesy had previously sold methamphetamine to prove his
intent to manufacture methamphetamine.

       The Presentence Report indicated that Sweesy may be entitled to a reduction
of his offense level based on acceptance of responsibility. The probation officer
determined that this case would fall under the exception to United States Sentencing

                                        -3-
Guideline section 3E1.1 for acceptance of responsibility. Application note 2
provides:

      This adjustment 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. . . . Conviction by trial, however, does not
      automatically preclude a defendant from consideration for such a
      reduction. In rare situations a defendant may clearly demonstrate an
      acceptance of responsibility for his criminal conduct even though he
      exercises his constitutional right to a trial. This may occur, for example,
      where a defendant goes to trial to assert and preserve issues that do not
      relate to factual guilt (e.g., to make a constitutional challenge to a statute
      or a challenge to the applicability of a statute to his conduct).

U.S. SENTENCING GUIDELINES MANUAL § 3E1.1, cmt. n.2 (2000). The district court
determined that the reduction was not warranted because "the defendant went to trial
to preserve a factual issue dealing with whether he was guilty, that being whether he
intended to manufacture methamphetamine."

        Sweesy did not testify at trial. Therefore, the element of intent rested on the
jury's inferences from the undisputed facts. Sweesy recognized responsibility when
he admitted possession and turned the materials over to law enforcement personnel.
These facts are not in dispute. What he denied was the inference that the mere
possession of the materials constituted an attempt to manufacture methamphetamine.
He did not deny his conduct, he merely raised a good faith legal objection to the
conclusions drawn from that conduct.

       The question of Sweesy's guilt was the subject of two trials. The first jury did
not convict Sweesy. The government presented a weak case, one barely enough to
support a conviction from the second jury. A close question existed as to whether
Sweesy's possession of chemicals useable to manufacture methamphetamine is
sufficient to establish an intent to manufacture methamphetamine. Intent reflects a

                                           -4-
state of mind. Nothing in the acceptance-of-responsibility provision in the
Sentencing Guidelines requires a defendant to admit his intent. Rather, the provision
addresses conduct, Sweesy admitted his conduct.

      The sentence imposed is a mighty long time, thirteen years and eight months,
especially when the defendant did not produce methamphetamine and turned over the
incriminating materials of his own accord.

       Most judges, in my opinion, would have granted a reduction in the offense
level for acceptance of responsibility. Judges should take into account that many
guideline drug sentences are often heavier than is warranted by the nature of the
crime. This is where a district judge's discretion becomes important and where the
judge often should take advantage of the provisions that permit reducing sentences
under the guidelines.

       While the determination of the sentencing judge is entitled to great deference,
in this case the district judge made a mistake.

      Thus, I dissent.

      A true copy.

             Attest:

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




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