202 F.3d 959 (7th Cir. 2000)
United States of America,    Plaintiff-Appellee,v.Everett A. Williams,    Defendant-Appellant.
No. 99-1157
In the  United States Court of Appeals  For the Seventh Circuit
Argued December 3, 1999Decided January 21, 2000

Appeal from the United States District Court   for the Northern District of Indiana, South Bend Division.  No. 3:98 CR 18--Allen Sharp, Judge.
Before Flaum, Rovner and Evans, Circuit Judges.
Flaum, Circuit Judge.


1
Everett A. Williams  appeals the sentence imposed by the district  court following his conviction by a jury for  possession with intent to distribute cocaine base  in violation of 21 U.S.C. sec. 841(a)(1) and (b).  For the reasons stated herein, we affirm.

I.  BACKGROUND

2
In early 1998, the Metro Special Operations  Section ("MSOS") of the South Bend Police  Department was conducting a narcotics  investigation of Glenn D. Brown, the nephew of  the defendant Everett A. Williams. As part of  this investigation, an MSOS undercover officer  had made several controlled buys of cocaine and  cocaine base from Brown.


3
On March 24, 1998, MSOS undercover officer Wise  arranged to purchase several ounces of cocaine  and cocaine base from Brown. Brown and Wise  agreed to meet at a Lee's Famous Chicken in South  Bend to perform the transaction. Undercover  officers were conducting surveillance of the area  around the time the transaction was to take  place. Several of these officers witnessed Brown  pass a red Zesta cracker box to the driver of a  white car. The car was driven to Lee's Famous  Chicken where Williams exited the vehicle  carrying a red Zesta cracker box. Williams  approached the car where Wise was waiting and  handed him the cracker box. Wise gave Williams  $4,000 in exchange for the box. MSOS surveillance  officers videotaped the exchange. Williams was  then arrested, and the cracker box was found to  contain four and a half ounces of cocaine base.


4
Williams was charged with one count of  possession with intent to distribute cocaine base  in violation of 21 U.S.C. sec. 841(a)(1) and (b).  Williams pled not guilty, claiming that he did  not know that the cracker box contained cocaine  and that he thought the $4,000 was payment for a  car that Brown had sold to the undercover  officer. Williams was convicted after a jury  trial on August 28, 1998.


5
The probation office then prepared a Presentence  Report ("PSR") to which Williams made several  objections. First, Williams challenged the denial  of a two-level reduction for acceptance of  responsibility under the Sentencing Guidelines  ("Guidelines"). He also objected to the denial of  downward departures based on his physical  condition and the fact that his conviction  resulted from a single act of aberrant behavior.  On January 5, 1999, the district court held a  sentencing hearing at which all of Williams'  objections were overruled. At the hearing,  Williams also argued for a downward departure  under the "safety valve" provision of the  guidelines, U.S.S.G. sec. 5C1.2, but the district  court found Williams was not eligible to receive  this departure. The district court then sentenced  Williams to 63 months in prison, the minimum  sentence permitted under the applicable  guidelines. Williams now appeals his sentence.

II.  DISCUSSION

6
Williams challenges four rulings of the district  court with respect to his sentence. Williams  argues first that the district court erred when  it denied him a two-level reduction for  acceptance of responsibility; second, that the  district court should have granted him a downward  departure because of his severe physical  disability; third, that the district court erred  by not granting a downward departure for aberrant  behavior; and fourth, that the district court  should have reduced his sentence under the  "safety valve" provision of the Guidelines. We  consider each of these arguments in turn.

A.  Acceptance of Responsibility

7
Williams first argues that the district court  erred by denying him a two-level reduction for  acceptance of responsibility under U.S.S.G. sec.  3E1.1. The district court's determination that a  defendant is not entitled to a sentence reduction  for acceptance of responsibility is a factual one  that we review for clear error. United States v.  Kamoga, 177 F.3d 617, 622 (7th Cir. 1999). We  give great deference to the district court's  conclusion in this matter as that court is in a  unique position to assess the defendant's motives  and genuineness in professing to accept  responsibility for his crime. United States v.  Cunningham, 103 F.3d 596, 598 (7th Cir. 1996).  "Unlike the district court judge, we do not enjoy  a 'front row seat' from which to assess [the  defendant's] statements and demeanor." Id.  (citations and quotations omitted).


8
Ordinarily a defendant who chooses to go to  trial and force the government to prove his guilt  is not eligible to receive a sentence reduction  for acceptance of responsibility. See U.S.S.G.  sec. 3E1.1 cmt., n. 2 ("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."). However, the Guidelines contemplate an  exception for defendants who proceed to trial  solely to challenge issues other than factual  guilt. See id. For example, a defendant who goes  to trial only to challenge the constitutionality  of a statute is still eligible to receive the  acceptance of responsibility reduction. See id.;  United States v. Bonanno, 146 F.3d 502, 513 (7th  Cir. 1998). If a defendant challenges factual  evidence of guilt as well as legal principles,  however, he typically will be ineligible to  receive the acceptance of responsibility  reduction. See Bonanno, 146 F.3d at 513; United  States v. Muhammad, 120 F.3d 688, 701-02 (7th  Cir. 1997).


9
In this case, the government charged Williams  with possession with intent to distribute cocaine  base in violation of 21 U.S.C. 841(a)(1). This  statute provides that "it shall be unlawful for  any person knowingly or intentionally (1) to . .  . possess with intent to manufacture, distribute,  or dispense a controlled substance." Williams  contends that the sole issue he wished to contest  at trial was that the term "knowingly" implies  objective as well as subjective knowledge that he  was in possession of a controlled substance. In  other words, he argues that under this statute  the government had to prove he actually knew that  the box he gave to officer Wise contained illegal  drugs, not simply that he should have known there  were drugs in the box. Williams argues that in  order for him to contest this legal issue, he  also had to contest the factual issue of his  subjective knowledge of the contents of the  cracker box. Otherwise, he would be admitting  guilt under either legal standard, and there  would be no issue upon which to conduct a trial.  Therefore, Williams contends that he should not  become ineligible to receive the acceptance of  responsibility reduction solely because he  challenged a factual issue at trial that was a  necessary predicate to his legal challenge.


10
Williams may be correct that had he gone to  trial solely to contest the legal definition of  the term "knowingly" as used in the statute under  which he was charged, he might have been entitled  to the acceptance of responsibility reduction  even though he challenged a factual issue as well  because in that unique situation the legal  challenge may be dependent on a concurrent  factual challenge. However, that interesting set  of facts did not occur in this case, and we do  not consider or decide what would have happened  had those events come to pass.


11
The Guidelines' commentary clearly states that  when a defendant who has gone to trial seeks a  reduction of his sentence for acceptance of  responsibility, "a determination that a defendant  has accepted responsibility will be based  primarily upon pre-trial statements and conduct."  U.S.S.G. sec. 3E1.1 cmt., n. 2. In this case, we  find no evidence in the record that Williams made  any representations to the trial court either  before or during trial that he wished to  challenge only the legal standard under which he  was being prosecuted. A single written objection  before trial, and a virtually identical oral  objection at trial, made to the government's  proposed "ostrich defense" jury instruction1 are the only instances we can find in the record  where the defendant appears to challenge the  legal standard under which he was charged.  Furthermore, it is unclear that these objections  do, in fact, present a legal rather than a  factual challenge. Williams based his objection  to the jury instruction solely on the allegation  that "there [was] no factual evidence to indicate  deliberate ignorance on defendant's part."  Defendant's Proposed Jury Instructions (emphasis  added). It appears from the phrasing of this  objection that Williams was challenging the  factual support for an instruction under the  objective knowledge standard. This objection does  not, on its face, suggest that Williams was  asserting that the objective knowledge standard  is an improper legal interpretation of the  statute under which he was charged. Therefore,  the record does not support Williams' contention  that he went to trial to make a legal challenge  to the statute at all. Rather, it appears from  the record that Williams' purpose in going to  trial was solely to contest his factual guilt.


12
Williams argues that we should draw the  inference that he accepted responsibility and  went to trial solely to challenge a legal issue  from the fact that he that he never challenged  the government's version of events and never  denied his guilt under the objective knowledge  standard. However, as we have noted above, the  record simply does not support this version of  events. In addition, even if the defendant had  put up no resistance to the government's  prosecution, the district court could have  interpreted this choice in several ways. The  district court could have construed the  defendant's alleged failure to challenge the  government's version of events as acceptance of  responsibility for his wrongful conduct. But, the  district court also could have determined that  Williams was merely relying on the presumption of  innocence and requiring the government to prove  its case against him. Cf. United States v.  Herrera-Ordones, 190 F.3d 504, 512-13 (7th Cir.)  (affirming the district court's denial of an  acceptance of responsibility reduction to a  defendant who went to trial solely to challenge  the legal issue of venue because the defendant  demonstrated through pre- and post-trial conduct  that he had not accepted moral responsibility for  his criminal actions). The district court, having  sat through all of the proceedings below, is in  a better position than this Court to determine  how Williams' conduct should be construed. In  this case, the district court determined that  Williams' conduct did not express an acceptance  of responsibility for his criminal actions, and  we defer to that court's conclusion in this  matter.


13
While the record does support Williams'  contention that the only issue he seriously  challenged at trial was his knowledge that the  Zesta cracker box contained illegal drugs,  knowledge, either objective or subjective, is a  factual element of the offense with which  Williams was charged. By challenging this element  Williams was "denying [an] essential factual  element[ ] of guilt" and is ineligible to receive  a reduction for acceptance of responsibility  under U.S.S.G. sec. 3E1.1. See cmt., n. 2; see  also Osmani, 20 F.3d at 269-70 (denying  acceptance of responsibility reduction to a  defendant who maintained he had no knowledge that  there was over $4,000,000 worth of heroin in the  suitcase he was carrying because defendant was  challenging an "essential factual element of  guilt"). For these reasons, we conclude that the  district court did not err by denying Williams a  sentence reduction for acceptance of  responsibility.


14
B.  Physical Disability and Aberrant Behavior


15
Williams next argues that the district court  should have granted him a downward departure  under U.S.S.G. sec. 5H1.4 because he has an  extraordinary physical impairment that will make  him vulnerable to attack in prison and for which  the Bureau of Prisons is unable to provide  adequate medical care. Williams also argues that  the district court erred by not granting him a  downward departure under U.S.S.G. sec. 5K2.0  because his conduct was clearly a single instance  of aberrant behavior. We review a decision by the  district court to grant a sentence departure for  abuse of discretion. Koon v. United States, 518  U.S. 81, 91 (1996). We review the district  court's determination that it lacked the  authority to depart de novo. United States v.  Helton, 975 F.2d 430, 434 (7th Cir. 1992).  However, we have no jurisdiction to review a  district court's decision to deny a discretionary  sentence departure. United States v. Tyler, 125  F.3d 1119, 1123 (7th Cir. 1997); United States v.  Rosalez-Cortez, 19 F.3d 1210, 1221 (7th Cir.  1994).


16
The sentencing departures for physical  disability and aberrant behavior are  discretionary ones. See Tyler, 125 F.3d at 1123;  Rosalez-Cortez, 19 F.3d at 1221; Helton, 975 F.2d  at 434. In this case, the district court clearly  understood that it had the authority to depart  for the reasons requested by Williams. The record  reflects the district court's comprehension of  the relevant legal standards and its application  of them to the facts of this case. Therefore, we  lack jurisdiction to review the district court's  exercise of its discretion not to depart on the  basis of Williams' physical disability or the  claimed single act of aberrant behavior.


17
C.  "Safety Valve"


18
Williams finally argues that the district court  erred when it determined he was ineligible to  receive a sentence reduction under U.S.S.G. sec.  5C1.2, the "safety valve" provision. We review  the district court's determination that a  defendant is ineligible to receive a reduction  under sec. 5C1.2 for clear error. United States  v. Thompson, 76 F.3d 166, 171 (7th Cir. 1996).


19
The "safety valve" provision of the Guidelines  allows a sentencing court to depart below the  statutory mandatory minimum sentence for certain  drug offenses where the defendant is a first time  offender who was not the organizer or leader of  criminal activity and has made a good faith  effort to cooperate with the government. U.S.S.G.  sec. 5C1.2; 18 U.S.C. sec. 3553(f)(1)-(5). This  provision is only applicable where the district  court determines that the appropriate sentence  under the Guidelines falls below the statutory  mandatory minimum sentence. In this case, the  district court determined that the range for the  defendant's sentence under the applicable  guidelines was 63-78 months. The mandatory  minimum sentence for Williams' conduct under 21  U.S.C. sec. 841 is 60 months. The district court  determined that the defendant was ineligible for  a downward departure under the "safety valve"  provision because the statutory mandatory minimum  sentence was below the minimum sentence provided  in the Guidelines. Williams' argument that he was  eligible to receive the "safety valve" reduction  rests on his assertion that the district court  should have applied the departures discussed  above so that the resulting sentence under the  Guidelines would be below the statutory minimum.  As we have concluded that the district court did  not err in denying these departures, we also  conclude that that court did not err in its  determination that Williams was ineligible to  receive a departure under the safety valve  provision.

III.  CONCLUSION

20
For the foregoing reasons, the sentence imposed  by the district court is Affirmed.



Notes:


1
 The text of the "ostrich defense" instruction was  as follows:
Since the jury must find that the defendant  knowingly committed the charged offense, the  defendant may not escape liability by shutting  his eyes for fear of what he would learn and  plead ignorance. Actual knowledge and deliberate  avoidance of knowledge where the defendant cut  off his normal curiosity by an effort of will are  the same thing. If you find the defendant had a  strong suspicion that things were not what they  seemed or that the defendant knew or strongly  suspected that he was involved in criminal  activity but deliberately avoids learning so,  then you may conclude that he acted knowingly.


