                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                           UNITED STATES COURT OF APPEALS
                                                                                 OCT 21 1997
                                      TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,
           Plaintiff - Appellee,                              No. 97-1098
                                                        (D.C. No. 95-CR-173-N)
 v.                                                           (D. Colo.)
 GEOFFREY CHRIS CLEMENT,

           Defendant - Appellant.


                                   ORDER AND JUDGMENT*


Before BALDOCK, McKAY, and LUCERO, Circuit Judges.



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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

       Defendant-Appellant was indicted on forty charges of wire fraud, money

laundering, aiding and abetting, and criminal forfeiture. One year after his indictment and

one month before his scheduled trial date, the Defendant agreed to a plea bargain. At


       *
        This order and judgment is not binding precedent, except under the doctrines of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.
sentencing, the district court adjusted the Defendant’s sentence upward for obstruction of

justice pursuant to the U.S. Sentencing Guidelines (U.S.S.G.) § 3C1.1. The district court

denied an acceptance of responsibility adjustment pursuant to U.S.S.G. § 3E1.1. The

Defendant is appealing the application of the § 3C1.1 adjustment and the denial of the

§ 3E1.1 adjustment. We exercise jurisdiction over this appeal under 18 U.S.C.

§ 3742(a)(2), and affirm the sentence.

       The Defendant argues the district court erred in adjusting his offense level for

obstruction of justice pursuant to U.S.S.G. § 3C1.1. We review the district court’s factual

findings on this issue for clear error. United States v. Shumway, 112 F.3d 1413, 1426

(10th Cir. 1997); United States v. Pretty, 98 F.3d 1213, 1221 (10th Cir. 1996), cert.

denied, ___ U.S. ___, 117 S. Ct. 2436 (1997). Reviewing the record before us under this

deferential standard, we hold there was no error in the district court’s determination that

the obstruction of justice adjustment was warranted.

       This court reviews the factual findings underlying the denial of an acceptance of

responsibility reduction under the clearly erroneous standard. United States v. Robertson,

45 F.3d 1423, 1449 (10th Cir. 1995); United States v. Portillo-Valenzuela, 20 F.3d 393,

394 (10th Cir. 1994). We review legal issues involving the interpretation of the

sentencing guidelines de novo. United States v. Robertson, 45 F.3d at 1444; United

States v. Rowlett, 23 F.3d 300, 303 (10th Cir. 1994); United States v. Levy, 992 F.2d

1081, 1083 (10th Cir. 1993).


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       The Defendant argues that the district court used the wrong test to determine when

both an upward adjustment for obstruction of justice and a downward adjustment for

acceptance of responsibility may be applied. Appellant’s Br. at 21. Although these

adjustments seem to contradict each other, they may be applied to the same defendant in

“extraordinary cases.” U.S.S.G. § 3E1.1 commentary n.4. Extraordinary cases exist

when a defendant’s obstructive conduct is not inconsistent with his acceptance of

responsibility. United States v. Hopper, 27 F.3d 378, 383 (9th Cir. 1994) (“To conclude a

case is not extraordinary, the district court must necessarily find the obstructive conduct is

inconsistent with the defendant’s acceptance of responsibility.”).

       The appropriate analysis for determining what constitutes an extraordinary case

requires evaluating whether both adjustments are warranted. See United States v. Amos,

984 F.2d 1067, 1072-73 (10th Cir. 1993); United States v. Lallemand, 989 F.2d 936, 937-

38 (7th Cir. 1993); United States v. Hicks, 948 F.2d 877, 885 (4th Cir. 1991). The

defendant must clearly demonstrate that he is no longer obstructing justice and that he is

truly contrite. See United States v. Amos, 984 F.2d at 1072-73; United States v.

Rafaelito, 946 F.2d 107, 110 (10th Cir. 1991) (“And neither do Rafaelito’s statements to

the probation officer evidence a meek and contrite heart.”). In determining whether

Defendant’s case was extraordinary, exhibiting both an abandonment of obstruction and a

total acceptance of responsibility, the district court correctly evaluated whether the

Defendant’s claims that mental illness contributed to his illegal behavior belied a total


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acceptance of responsibility.

       The defendant must prove he is entitled to a reduction in his offense level under §

3E1.1 by a preponderance of the evidence. United States v. Amos, 984 F.2d at 1073;

United States v. Portillo-Valenzuela, 20 F.3d at 394. Although Mr. Clement made a

strong showing of accepting responsibility for his acts, under a deferential standard we do

not find the district court erred in refusing to grant the requested reduction. The

sentencing court is in a unique position to determine if the defendant is truly remorseful.

U.S.S.G. § 3E1.1, commentary n.5. This court may overturn the district court’s

acceptance of responsibility determination only if it is without foundation. United States

v. Amos, 984 F.2d at 1071-72; U.S.S.G. § 3E1.1, commentary n.5. The district court

believed the Defendant did not fully accept responsibility for his acts because he still

claimed that his mental illness was at least partially to blame for his behavior. This

provides a sufficient foundation for the court’s decision. On the merits of the case, and

based upon the record before us, we do not believe the district court’s determination

clearly erroneous.

       We therefore AFFIRM the sentence imposed by the district court.

                                                  Entered for the Court



                                                  Monroe G. McKay
                                                  Circuit Judge



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