                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           NOV 14 2002

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICAN,

          Plaintiff - Appellee,
                                                       No. 02-4002
 v.                                              D.C. No. 2:01-CR-425-B
                                                        (D. Utah)
 ARMANDO GARCIA-ZAVALA,

          Defendant - Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, HENRY, and BRISCOE, Circuit Judges.


      Armando Garcia-Zavala challenges the district court’s denial of a

downward adjustment for acceptance of responsibility. For the reasons set out

below, we affirm.

      This court reviews the factual issue of whether a defendant has accepted

      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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 for clear error only. United States v. Ivy, 83 F.3d 1266, 1292 (10th

Cir. 1996). Because the “sentencing judge is in a unique position to evaluate a

defendant’s acceptance of responsibility . . . the determination of the sentencing

judge is entitled to great deference on review.” Id. at 1292-93 (citing U.S.S.G. §

3E1.1, comment. (n.5)).

      Mr. Garcia-Zavala was charged with one count of illegal re-entry of a

deported alien in violation of 8 U.S.C. § 1326. Before trial he admitted to the

INS his name, that he was in the country illegally, and that he had previously been

deported, but he still insisted on exercising his right to trial, requiring the

government to prove his guilt. After his conviction by a jury, the district court

determined that Mr. Garcia-Zavala was not entitled to a reduction of his sentence

for acceptance of responsibility. The sentencing judge noted that the defendant

“did . . . insist on going to trial and never until this point in time acknowledge to

the Court his culpability. As I read the sentencing guidelines in my discretion the

defendant is far from complying with the requirements.” Rec., Vol. III at 8-9.

      Mr. Garcia-Zavala contends that his decision to go to trial should not

preclude the acceptance adjustment because he admitted the elements of the

offense to the INS before trial and did not dispute his guilt during trial. However,

the commentary in the Sentencing Guidelines on which Mr. Garcia-Zavala relies,

as well as the case law interpreting that commentary, do not support his position.


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      In United States v. Portillo-Valenzuela, 20 F.3d 393 (10th Cir. 1994), we

required the defendant to clearly demonstrate acceptance of responsibility by

doing more than passively failing to object to the government as it put on its case.

“Pleading not guilty and requiring the government to prove guilt at trial

demonstrate denial of responsibility, regardless of how easily the government can

prove [its case].” Id. at 394-95. We have said “[i]t is disingenuous to maintain

that an individual ‘clearly demonstrates’ acceptance of responsibility by simply

declining to controvert the government’s evidence at trial. Instead, this language

contemplates that the defendant will perform some affirmative act, rather than

standing idly by while the government proves its case.” Ivy, 83 F.3d at 1294. See

also United States v. Davila, 964 F.2d 778, 784 (8th Cir. 1992), (upholding

district court’s denial of reduction because defendant pleaded not guilty on all

counts and forced government to prove guilt, despite pretrial confession and offer

to cooperate).

      Mr. Garcia-Zavala contends there is an exception in the guidelines

commentary to the effect that the court should look to his pre-trial confession in

determining acceptance of responsibility even though he went to trial. Mr.

Garcia-Zavala has misconstrued this commentary.

      The exception in application note 2 to U.S.S.G. § 3E1.1 for those

defendants who insist on going to trial is limited to “rare situations” in which the


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defendant does not contend factual innocence but instead goes to trial in order to

assert and preserve issues such as a constitutional challenge to a statute or to the

applicability of the statute to his conduct. Mr. Garcia-Zavala maintains that he

went to trial “as a form of protest as to the length of time that the sentencing

guidelines indicate for this kind of crime.” Rec., Vol. III at 7. That does not

constitute the kind of “rare situation” envisioned by application note 2.

      As we said in Portillo-Valenzuela, 20 F.3d at 395:

      This application note simply explains that in all but rare cases going
      to trial will preclude reduction for acceptance of responsibility, but
      in those rare cases acceptance of responsibility will be based upon
      pretrial statements and conduct rather than post-conviction
      admissions of guilt and expressions of remorse. It does not suggest
      that in some or all cases the court may not consider whether the
      defendant pleaded not guilty and went to trial.

      Having discovered no clear error in this case, and giving deference to the

decision of the sentencing court, we hold that the court here did not err in denying

the adjustment for acceptance of responsibility. We therefore AFFIRM the

decision of the district court.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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