                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS October 27, 2015
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 14-5133
          v.                                            N.D. Oklahoma
 ALAN WADE HUTCHINSON, also                   (D.C. No. 4:14-CR-00080-JHP-1)
 known as Wild Wade, also known as
 Allen Wade Hutchinson,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 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        This order and judgment is not binding precedent except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I.    Introduction

      Appellant Alan Wade Hutchinson was charged by a grand jury with being a

felon in possession of a firearm and ammunition. After the United States

Probation Office advised the parties that Hutchinson possibly qualified to be

sentenced as an armed career criminal, Hutchinson abandoned his plan to plead

guilty, proceeded to trial on the charge, and was convicted. The district court

calculated his advisory guidelines range without applying a reduction in his base

offense level for acceptance of responsibility but granted his request for a

downward variance. Hutchinson appeals his sentence, arguing the district court

committed procedural error by not applying a three-level acceptance of

responsibility adjustment when calculating his offense level. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm

Hutchinson’s sentence.

II.   Background

      Hutchinson was arrested in April 2014, in Tulsa, Oklahoma. At the time of

his arrest, officers recovered a semi-automatic pistol and ammunition from a

backpack on the ground next to Hutchinson’s vehicle. A federal grand jury

charged him with being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1). The charge carried a maximum penalty of ten years’

imprisonment. 18 U.S.C. § 924(a)(2).




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        After initially entering a plea of not guilty, Hutchinson informed the

district court he intended to plead guilty. The matter was referred to a magistrate

judge for a change-of-plea hearing. On the morning of the hearing, the United

States Probation Office advised the parties it believed Hutchinson qualified as an

armed career criminal. See 18 U.S.C. § 924(e)(1) (setting out a fifteen-year

minimum mandatory sentence for individuals with three previous convictions for

violent felonies or serious drug offenses). In light of this development,

Hutchinson did not plead guilty at the hearing. The Government then filed a

pretrial notice of its intention to seek an enhanced sentence under the Armed

Career Criminal Act (“ACCA”). See id. The matter proceeded to trial on July 15,

2014.

        At trial, the Government called four witnesses, including the passenger in

Hutchinson’s vehicle when he was arrested. This witness testified that the black

backpack belonged to Hutchinson. She also testified that she has never owned a

firearm. During cross-examination, Hutchinson questioned the witness about the

fact her clothing was found in the backpack next to the firearm. He also pursued

testimony that the witness and Hutchinson had recently argued over Hutchinson

dating other women. During closing argument, Hutchinson not only attempted to

impeach the credibility of this witness, but also suggested she had framed

Hutchinson out of jealousy. He argued the Government’s case was supported

only by the testimony of “a girl that has vengeance because of an unfaithful man,

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and has ability to carry it out because she tried to run over somebody in the past,

and has been guilty of three or four different con games.” Hutchinson referred to

his theory as his “version of the facts” and asserted it was supported by the

evidence.

      The jury found Hutchinson guilty and a presentence investigation report

(“PSR”) was prepared. The PSR concluded Hutchinson’s prior offenses placed

him in Criminal History Category V. Applying USSG § 2K2.21(a)(4)(A), the

PSR applied a base offense level of twenty and did not recommend any reduction

in the offense level for acceptance of responsibility. Contrary to the earlier

position taken by the Probation Office, the PSR did not apply the ACCA because

Hutchinson had only two predicate felony convictions.

      Hutchinson filed a written objection to the PSR. Relying on the

commentary to § 3E1.1 of the Sentencing Guidelines, Hutchinson argued he was

entitled to three-point adjustment for acceptance of responsibility because he

never denied possessing the firearm and proceeded to trial only to preserve issues

that did not relate to his factual guilt, i.e., application of the ACCA. See USSG

§ 3E1.1 cmt. n.2. (“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

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statute to his conduct.)”). At sentencing, the district court stated the following

with respect to Hutchinson’s request for the acceptance-of-responsibility

adjustment:

              While the Court recognizes the defendant’s pretrial conduct
       included the defendant initially announcing his intention to plead
       guilty, his conduct is not dispositive. Subsequent to the decision to
       proceed to trial, the defendant persisted in his plea of not guilty.
       Furthermore, counsel for the defendant presented a theory at trial of
       the possibility that another individual found with the defendant
       placed the gun in the defendant’s backpack, thereby contesting the
       essential elements of the intent to possess the firearm.

               The defendant has not clearly demonstrated acceptance of his
       guilt, thus the defendant is not entitled to receive a reduction for
       acceptance of responsibility.

Notwithstanding its conclusion that Hutchinson was not entitled to the § 3E1.1

adjustment, the district court granted his motion for a three-level variance, citing

the “unique progression and factual circumstances” of the case. With the

variance, the court calculated Hutchinson’s advisory guidelines range as forty-six

to fifty-seven months. The court sentenced Hutchinson to forty-eight months’

imprisonment. It is from this sentence Hutchinson appeals.

III.   Discussion

       Hutchinson argues his sentence is procedurally unreasonable because the

district court erred when it calculated his advisory guidelines range. Specifically,

he asserts the court erred by not applying the three-level reduction for acceptance

of responsibility. This court evaluates a sentence for procedural reasonableness


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by “review[ing] the district court’s legal conclusions regarding the Guidelines de

novo and its factual findings for clear error.” United States v. Muñoz-Nava, 524

F.3d 1137, 1146 (10th Cir. 2008). Whether Hutchinson accepted responsibility

for his actions is a factual determination reviewed for clear error. United States

v. Gauvin, 173 F.3d 798, 805 (10th Cir. 1999). “To constitute clear error, we

must be convinced that the sentencing court’s finding is simply not plausible or

permissible in light of the entire record on appeal, remembering that we are not

free to substitute our judgment for that of the district judge.” United States v.

Torres, 53 F.3d 1129, 1144 (10th Cir. 1995).

         Although Hutchinson proceeded to trial, the commentary to § 3E1.1

acknowledges he is not precluded from receiving an offense-level reduction for

acceptance of responsibility. See USSG § 3E1.1 cmt. n.2. But the district court

did not deny the § 3E1.1 reduction because Hutchinson proceeded to trial. The

court denied the reduction because it found that Hutchinson contested the mens

rea element of the charged offense by arguing the passenger in his vehicle placed

the firearm in his backpack without his knowledge. See United States v. Tom, 494

F.3d 1277, 1281-82 (10th Cir. 2007) (affirming the denial of a § 3E1.1 reduction

because the defendant proceeded to trial and claimed he lacked the requisite mens

rea for guilt). The record fully supports this finding and, thus, there is no clear

error.




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IV.   Conclusion

      The sentence imposed by the district court is affirmed.

                                        ENTERED FOR THE COURT


                                        Michael R. Murphy
                                        Circuit Judge




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