                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 11-12234            ELEVENTH CIRCUIT
                                        Non-Argument Calendar        NOVEMBER 2, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                           D.C. Docket No. 6:10-cr-00023-BAE-GRS-1



UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                              lPlaintiff-Appellee,


                                                 versus


TRAVIS A. BACON,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Southern District of Georgia
                                 ________________________

                                           (November 2, 2011)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Travis A. Bacon pled guilty to possession of a firearm by a convicted felon,

in violation of 18 U.S.C. § 922(g)(1). The Sentencing Guidelines prescribed a

sentence range of 77 to 96 months’ imprisonment. The district court sentenced to

a term of 77 months. He now appeals his sentence, presenting one issue: whether

in determining his offense level under the Guidelines, the district court erred in

denying his request for a reduction of the base offense level pursuant to U.S.S.G.

§ 3E1.1 for acceptance of responsibility.

      We review a district court’s findings of fact under a clear error standard.

United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005). “Because

demonstration of whether or not the defendant has personally accepted

responsibility for his criminal conduct requires a consideration of both objective

factors and subjective considerations of the defendant's demeanor and sincerity,

the district court's determination will not be overturned unless it is without

foundation.” United States v. Castillo-Valencia, 917 F.2d 494, 500 (11th Cir.

1990). The defendant bears the burden of establishing, by a preponderance of the

evidence, the factual basis for a § 3E1.1 reduction. United States v. Askew, 193

F.3d 1181, 1183 n.3 (11th Cir. 1999).

      Section 3E1.1 of the Guidelines states that the base offense level is

decreased by two points if the defendant “clearly demonstrates acceptance of

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responsibility for his offense.” U.S.S.G § 3E1.1(a). “To determine whether a

defendant qualifies, a sentencing court should consider whether he truthfully

admitted or did not falsely deny any additional relevant conduct.” United States v.

Coe, 79 F.3d 126, 127 (11th Cir. 1996)(quotation omitted). In Coe, we held that

“relevant conduct includes all acts that occurred during the commission of the

offense,” not merely acts that are directly relevant to criminal liability. Id.

      Here, the district court did not clearly err in finding that Bacon did not

accept responsibility for all relevant conduct. The court was not satisfied that he

had been truthful regarding how he obtained possession of the firearms, which

form the basis of his offense, referencing the inconsistencies between his affidavit

and his interview with the police. Additionally, the court explicitly stated that it

did not accept the factual statements in the presentence report as entirely accurate.

      In any event, we need not vacate and remand for error if we conclude, “on

the record as a whole, that the error was harmless, i.e., that the error did not affect

the district court's selection of the sentence imposed.” Williams v. United States,

503 U.S. 193, 203, 112 S.Ct. 1112, 1120-21, 117 L.Ed.2d 341 (1992). In United

States v. Keene, we declined to review the application of a two-point threat-of-

death sentence enhancement, stating “it is unnecessary for us to decide the

enhancement issue” because “the district court told us that the enhancement made

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no difference to the sentence it imposed.” 470 F.3d 1347, 1348 (11th Cir. 2006).

In Keene, we added that the sentence imposed must be reasonable “even if the

guidelines issue had been decided in the defendant’s favor.” Id. at 1349. In making

this determination, we assume “exactly the same conduct [of the defendant] and

other factors in the case.” Id. at 1349-50.

      Here, the district court explicitly stated that it would impose the same 77-

months’ sentence, regardless of whether or not it granted a reduction for

acceptance of responsibility. Even if the guideline issue had been resolved in

Bacon’s favor, the high-end of his sentence range would have been 71 months.

Bacon does not contend that his sentence was unreasonably severe, and the record

does not show that a 6-month variance would be unreasonable.

      AFFIRMED.




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