                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 8 1998
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 98-3032
 v.
                                              (D.C. No. 96-CR-40075-01-DES)
                                                         (D. Kan.)
 ERNEST WADDELL SLATER, JR.,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BALDOCK, EBEL and MURPHY, Circuit Judges.


      Ernest Waddell Slater, Jr. pleaded guilty to possession with intent to

distribute 8.62 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and

was sentenced to 92 months’ imprisonment. He appeals his sentence, contending

that the district court erroneously denied him a reduction in the base offense level

for acceptance of responsibility. See U.S.S.G. § 3E1.1. We exercise jurisdiction

over this appeal under 18 U.S.C. § 3742(a)(2), and affirm the sentence.



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs 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 This Order and Judgment is not binding precedent, except under the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.
      We review the sentencing court’s "acceptance of responsibility"

determination as a question of fact under the clearly erroneous standard, United

States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir. 1997), cert. denied, 118 S. Ct.

726 (1998); United States v. Amos, 984 F.2d 1067, 1071 (10th Cir. 1993), and

accord great deference to the sentencing court because of its unique position to

evaluate the defendant’s acceptance of responsibility. See U.S.S.G. § 3E1.1,

Application Note 5; United States v. Janusz, 135 F.3d 1319, 1325 (10th Cir.

1998); Amos, 984 F.2d at 1073 (“The sentencing court’s determination that a

defendant is not entitled to an adjustment for acceptance of responsibility is

entitled to great deference on review and should not be disturbed unless it is

without foundation.”).

      Application Note 3 to U.S.S.G § 3E1.1 provides that entry of a guilty plea

prior to trial combined with truthful admission of the conduct comprising the

offense of conviction and of any other additional relevant conduct constitutes

significant evidence of acceptance of responsibility. The Note further provides,

however, that this evidence “may be outweighed by conduct of the defendant that

is inconsistent with such acceptance of responsibility.”

      The district court in this case acknowledged that the government had

agreed to a three-level reduction for acceptance of responsibility, but held that

Mr. Slater was not entitled to such a reduction in light of findings by the


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magistrate judge that Mr. Slater had violated his bond conditions by possessing

firearms and ammunition and by being present during an undercover drug

transaction. (ROA Vol. III, at 7; Vol. II, at 48-49). Mr. Slater contests the

district court’s finding that the magistrate judge had ruled there was “probable

cause” to believe that Mr. Slater was present during the drug transaction. Even

assuming that the district court erroneously believed that the magistrate had made

an actual “probable cause” finding to believe that Slater was present, (ROA Vol.

III at 7), it is clear that the magistrate found that the evidence showed that Slater

“was present at the time of [the controlled] purchase.” (ROA Vol. II at 48-49.)

That the sentencing court slightly reworded this finding bears no consequence

under the circumstances. In any event, the magistrate judge’s findings with

respect to Mr. Slater’s possession of firearms and ammunition, (ROA Vol. II at

46), coupled with his explicit concern that the defendant had “not made any effort

to disassociate himself from the narcotics trafficking,” (ROA Vol. II at 49),

supply sufficient foundation for the sentencing court’s refusal of the three-level

reduction. See U.S.S.G. § 3E1.1, Application Note 1(b) (providing that, in

determining whether defendant qualifies for reduction for acceptance of

responsibility, sentencing court may consider whether there has been voluntary

termination or withdrawal from criminal conduct or associations).




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      We give deference to the district court’s conclusion that the evidence of

Mr. Slater’s acceptance of responsibility was outweighed by conduct that was

inconsistent with acceptance of responsibility. Based on the record before us, we

believe the district court did not clearly err in determining that, due to his

continued criminal activity while on pre-trial release, the defendant was not

entitled to a reduction for acceptance of responsibility. We therefore AFFIRM

the sentence imposed by the district court.

      The mandate shall issue forthwith.

                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




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