                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        JAN 30 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 02-8022
 v.                                              D.C. No. 01-CR-101-02-B
                                                      (D. Wyoming)
 ROGELIO GUADALUPE-TEJEDA,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO and HARTZ, Circuit Judges.


      Rogelio Guadalupe Tejeda was indicted with several codefendants in a

multi-count indictment for conspiracy to distribute more than 500 grams of

methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)

(Count One); possession with intent to distribute methamphetamine, in violation

of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C) (Count Five); unlawfully distributing


      *
        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 ordered submitted without oral argument. 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order and judgment is not binding precedent, except under the doctrines of law of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.
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C)

(Count Six); and using a firearm during and in relation to a drug trafficking

offense, in violation of 18 U.S.C. § 924(c) (Count Seven). He pled not guilty to

these charges and was tried before a jury. The jury found the defendant guilty as

charged on Counts Five, Six, and Seven, and guilty of conspiracy to traffic in

between 50 and 100 grams of methamphetamine, a lesser included offense of that

charged in Count One. Tejeda appeals his sentence, claiming that the district

court should have reduced his offense level under the United States Sentencing

Guidelines by three levels because he accepted responsibility for his crime. See

U.S.S.G. § 3E1.1. We conclude that the district court did not clearly err in

refusing to award Tejeda the downward adjustment and AFFIRM Tejeda’s

sentence.

                                   DISCUSSION

      Under the Sentencing Guidelines, a defendant may receive a reduction of

up to three offense levels for acceptance of responsibility if he “clearly

demonstrates a recognition and affirmative acceptance of personal responsibility

for his offense.” U.S.S.G. § 3E1.1. Generally, a reduction in offense level for

acceptance of responsibility is not available where a defendant goes to trial and

puts the government to its burden of proof by denying the essential factual

elements of guilt. Id., cmt. n.2. In “rare situations,” however, a defendant may


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deserve the reduction for acceptance of responsibility even though he goes to

trial. Id. For example, a defendant may clearly demonstrate acceptance of

responsibility but elect to go to trial to “assert and preserve issues that do not

relate to factual guilt,” such as challenging the constitutionality of a statute or the

applicability of a statute to the defendant’s conduct. Id.; see also United States v.

Portillo-Valenzuela, 20 F.3d 393, 394 (10th Cir. 1994). We will reverse a district

court’s finding that the defendant did not accept responsibility only upon a

showing of clear error. Id.

      The defendant in this case did provide some cooperation to the authorities.

Tejeda was arrested on June 18, 2001, after he sold methamphetamine to a

government informant. (ROA VIII at 3.) Following his arrest, Tejeda gave

several voluntary statements to the police admitting that he had been selling

methamphetamine for several months. (ROA II, doc. 92 & attach. (police

summary of Tejeda’s statements).) In his statements, he provided the police with

the names of some of his customers and admitted to having traded

methamphetamine to one of his customers in exchange for a .44 caliber handgun.

(ROA VIII at 6.) Tejeda gave the police written consent to search his room at the

house where he was living so that the handgun could be recovered. (Id.) He also

made for the police a controlled purchase of methamphetamine from his supplier,

who subsequently was arrested. (Id.)


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      However, whatever recognition and personal acceptance of responsibility

Tejeda may have demonstrated by his pre-trial cooperation was undone by his

insistence on proceeding to trial on all four counts against him. Tejeda claims

that his purpose for going to trial “essentially was limited to countering the

Government’s efforts to inflate those drug quantities to which Tejeda voluntarily

confessed—a challenge to the charged drug quantity the Government alleged was

associated with charged conspiracy [in Count One].” (Aplt. B. at 19.) But this

objective could have been accomplished by pleading guilty to the three counts in

the indictment unaffected by his dispute as to the drug quantity involved in the

single conspiracy count. Instead, Tejeda formally denied factual guilt as to all the

counts with which he was charged by pleading not guilty, and he forced the

government to bear the burden of a four-day trial at which it had to prove every

element of every charge against him.

      Considering Tejeda’s conduct at trial, we cannot say that the district court

clearly erred in concluding that Tejeda had not accepted responsibility for his

crimes. See, e.g., Portillo-Valenzuela, 20 F.3d at 394 (“Despite Portillo-

Valenzuela’s pretrial confession, the district court did not clearly err by

concluding that forcing the government to prove factual guilt at trial indicated

failure to clearly demonstrate acceptance of responsibility.”); United States v.

Garcia, 987 F.2d 1459, 1461–62 (10th Cir. 1993) (sustaining district court’s


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denial of sentencing reduction because defendant forced the government to go to

trial on all counts, even though he claimed that he admitted responsibility before

trial on all but the one count of which he was acquitted). “Pleading not guilty and

requiring the government to prove guilt at trial demonstrate denial of

responsibility, regardless of how easily the government can prove guilt.” Portillo-

Valenzuela, 20 F.3d at 394–95.

                                 CONCLUSION

      Accordingly, we find that the district court did not clearly err when it

refused to award Tejeda a § 3E1.1 downward adjustment for acceptance of

responsibility. The sentence is AFFIRMED.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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