                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                           JAN 29 2003
                      UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                                                                  Clerk
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 02-2143
 v.                                                 D.C. No. CR-01-214-JP
                                                      (D. New Mexico)
 DAVID W. FUENTES,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO and O’BRIEN, Circuit Judges.


      David W. Fuentes was found guilty of two counts of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and sentenced to

concurrent terms of seventy-eight months’ imprisonment and three years’

supervised release thereafter. On appeal, Fuentes challenges only the calculation

of his sentence, arguing that the district court erred in: (1) using an ancient


      *
         At the parties’ request, the case is unanimously ordered submitted
without oral argument pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G).
This order and judgment is not binding precedent, except under the doctrines of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.
felony conviction to calculate his sentence under U.S.S.G. § 2K2.1(a)(2), a

provision generally applicable to defendants with two prior felony convictions for

a crime of violence or controlled substance offenses; and (2) refusing to grant a

two-point reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. We

have jurisdiction pursuant to 18 U.S.C. § 3742(a)(2) and 28 U.S.C. § 1291.

Because the government has confessed error and our independent review confirms

that the district court clearly erred in its application of § 2K2.1(a)(2), we vacate

and remand for resentencing on the first claim. We affirm as to the second

allegation of error.

                                           I

      In calculating Fuentes’s base offense level, the district looked to

U.S.S.G. § 2K2.1(a)(2), which instructs the sentencing court to apply a base

offense level of twenty-four “if the defendant committed any part of the instant

offense subsequent to sustaining at least two felony convictions of either a crime

of violence or a controlled substance offense.” The presentence report (“PSR”)

reveals two such prior felony convictions: (1) a 1979 conviction for accessory to

second-degree murder; and (2) a 1985 conviction for distribution of a controlled

substance. In 1989, Fuentes committed a parole violation relating to the 1979

conviction and was placed in custody until May 7, 1990.




                                          -2-
      In determining whether a prior felony conviction counts towards a

defendant’s base offense level under § 2K2.1, application note 15 indicates that

the court should “use only those felony convictions that receive criminal history

points [under U.S.S.G. § 4A1.1].” U.S.S.G. § 2K2.1 cmt. n.15. The definitions

and instructions for computing criminal history under § 4A1.1 are contained in

§ 4A1.2(e), and specify that only prior sentences exceeding one year and imposed

within fifteen years of the instant offense are counted. U.S.S.G. § 4A1.2(e)(1).

While Fuentes was assessed three criminal history points for his 1979 conviction

and subsequent 1989 parole violation, he received no criminal history points for

his 1985 felony conviction in the PSR. Despite this, trial counsel failed to object

to the district court’s determination that Fuentes’s base offense level under

§ 2K2.1(a)(2) was twenty-four, a base offense level indicating that both of

Fuentes’s prior felony convictions were used in calculating his sentence.

      Fuentes did object, however, to the district court’s refusal to grant a two-

level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, arguing

that he had never contested the fact that he possessed the guns or that he had two

prior felony convictions. Based in part on United States v. Reed, 114 F.3d 1053,

1058 (10th Cir. 1997), where we observed that “[a] defendant who requires the

government to make its proof by going to trial generally will not be allowed a




                                        -3-
two-level departure for acceptance of responsibility,” the district refused to grant

the reduction.

                                           II

      Fuentes failed to raise below the issue of the district court’s use of an

ancient felony conviction to calculate his sentence under § 2K2.1. Thus, our

review is limited to plain error. See United States v. Farnsworth, 92 F.3d 1001,

1007–08 (10th Cir. 1996) (limiting review of the precise issue raised in the

instant case to plain error because it had not been raised below); Fed. R. Crim. P.

52(b) (“A plain error that affects substantial rights may be considered even

though it was not brought to the court’s attention.”). Plain error is (1) error, (2)

that is plain, (3) that affects substantial rights of a defendant, and (4) that

seriously affects the fairness, integrity, or public perception of judicial

proceedings. Johnson v. United States, 520 U.S. 461, 467 (1997). In

Farnsworth 1, this court examined the precise issue now before us and determined




      1
         In Farnsworth, the court examined the pertinent note of commentary to
the edition of the Sentencing Guidelines then applicable. 92 F.3d at 1007 (noting
that the “court is to count any such prior conviction that receives any points under
§ 4A1.1” (quotation omitted)). While the instant case deals with the 2001 edition
of the Sentencing Guidelines, the slight difference in the wording of the particular
commentary notes is not significant. Under either phrasing, the fact that no
criminal history category points were assessed to Fuentes for the 1985 Texas
conviction is determinative of whether that conviction can be used for purposes of
determining Fuentes’s base offense level under § 2K2.1(a)(2).

                                          -4-
that “basing a sentence on the wrong Guideline range constitutes a fundamental

error affecting substantial rights.” 2 92 F.3d at 1007–08 (quotation omitted).

      On appeal, Fuentes acknowledges that trial counsel failed to raise the issue

below, but argues that the district court committed plain error affecting his

substantial rights in determining that his base offense level was twenty-four. The

government, for its part, agrees with Fuentes, and urges this court to vacate

Fuentes’s sentence and remand for resentencing. Fuentes asserts that the trial

court should have looked to § 2K2.1(a)(4)(A) (setting a base offense level of

twenty for those defendants with one qualifying prior felony conviction) rather

than § 2K2.1(a)(2) (setting a base offense level of twenty-four for those

defendants with at least two qualifying prior felony convictions). We agree.

Fuentes’s 1985 conviction did not result in any criminal history points, and

§ 2K2.1, cmt. n.15 specifically indicates that only those felony convictions that

receive criminal history points are to be used in calculating base offense level

under § 2K2.1. Thus, the district court’s use of this 1985 conviction as one of the

two predicate felony convictions under § 2K2.1(a)(2) was improper and




      2
         After all the calculations were made, Fuentes had a total offense level of
26, criminal history category III, resulting in a guideline range of 78–97 months.
If the 1985 Texas conviction had not been used in calculating Fuentes’s base
offense level under § 2K2.1(a)(2), Fuentes would likely have had a total offense
level of 22, criminal history category III, with a guideline range of 51–63 months.

                                        -5-
erroneous, affecting Fuentes’s substantial rights. In these circumstances,

Fuentes’s sentence must be vacated and the case remanded for resentencing.



                                         III

      Fuentes also argues that the district court erred in denying a two-point

reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. We review a

determination that a defendant is not entitled to an adjustment for acceptance of

responsibility for clear error. United States v. Day, 223 F.3d 1225, 1230 (10th

Cir. 2000).

      In most cases, a defendant who requires the United States to prove the

charges contained in the indictment does not qualify for the adjustment under

§ 3E1.1, and it is the defendant’s “burden to establish an entitlement to this

reduction.” Reed, 114 F.3d at 1058. Nevertheless, a defendant who stands trial is

not thereby automatically excluded from receiving an adjustment for acceptance

of responsibility, as application note 2 makes clear:

      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, is convicted, and only then admits guilt and
      expresses remorse . . . . 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). In each such instance, however, a

                                         -6-
      determination that a defendant has accepted responsibility will be
      based primarily upon pre-trial statements and conduct.

U.S.S.G. § 3E1.1 cmt. n.2 (emphasis added).

      Fuentes argues that his case presents one of those rare circumstances when

a defendant may clearly demonstrate an acceptance of responsibility even though

he exercises his constitutional right to a trial, because he never challenged the

factual elements that he possessed firearms after having been convicted of two

felonies, and sought only to present an entrapment defense. Fuentes notes that we

have held that application of the reduction for acceptance of responsibility is not

necessarily precluded by raising an entrapment defense at trial. See United States

v. Garcia, 182 F.3d 1165, 1173 (10th Cir. 1997). In the same case, however, we

also emphasized that our decision that raising an entrapment defense does not

preclude application of the adjustment “does not mean that the simple assertion of

the entrapment defense coupled with acknowledgment of the underlying criminal

activity automatically entitles a defendant to a two-point acceptance of

responsibility reduction.” Id. Because these circumstances do not automatically

entitle a defendant to a two-point reduction, the district court had discretion to

conclude, as it did, that Fuentes put the government to the burden of trial based

on questions of fact. In reviewing the court’s conclusion, we are mindful that

“[t]he sentencing judge is in a unique position to evaluate a defendant’s

acceptance of responsibility” and that “the determination of the sentencing judge

                                         -7-
is entitled to great deference on review.” U.S.S.G. § 3E1.1 cmt. n.5. Given the

record before us, 3 we are unable to conclude that the district court clearly erred

in finding that Fuentes put the government to the burden of trial based on

questions of fact and was therefore ineligible for a two-point reduction for

acceptance of responsibility under § 3E1.1.

                                         IV

      Fuentes’s sentence is VACATED in part and the matter is REMANDED

for recalculation of sentence under U.S.S.G. § 2K2.1(a)(2).



                                       ENTERED FOR THE COURT


                                       Carlos F. Lucero
                                       Circuit Judge




      3
         Fuentes freely admitted that he possessed firearms. However, in addition
to raising an entrapment defense, Fuentes argued at trial that the government had
not succeeded in proving that he possessed a firearm as a convicted felon within
the meaning of the statute because he believed that his civil rights had been
restored. The district court rejected Fuentes’s argument on two grounds: (1)
factually, Fuentes’s civil rights had not been restored, and (2) Fuentes’s belief
that they had been restored is no defense to a general intent crime like being a
“felon in possession of a firearm.”

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