                                                                [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                        ________________________

                               No. 95-8397
                        ________________________

                   D. C. Docket No. 1:94-CR-274-1-ODE

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

DONALD W. WRIGHT,

                                                          Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                             (January 28, 1998)

Before COX, Circuit Judges, KRAVITCH and CLARK, Senior Circuit Judges.
                              OPINION ON REHEARING



COX, Circuit Judge:

       The court sua sponte grants rehearing as to the sentencing issue (and only as

to the sentencing issue) addressed in its previous opinion, published at 117 F.3d

1265 (11th Cir. 1997). Part II.D of that opinion, 117 F.3d at 1275-77, is

accordingly vacated, and the following put in its stead.

       Donald Wright was convicted following a plea of guilty to one count of

possessing machine guns in violation of 18 U.S.C. § 922(o) and one count of

possessing unregistered destructive devices in violation of 26 U.S.C. § 5861(d).

Wright requested, and the Government recommended as part of a plea bargain, that

the district court adjust Wright’s offense level downward for acceptance of

responsibility under U.S.S.G. § 3E1.1. The court refused to do so. Wright asserts

that the district court’s refusal to adjust his offense level downward improperly

penalized him for the constitutional challenges he has asserted.1 We reject that

contention for two reasons.

       First, as we read the record, the district court’s refusal rested mainly on the

finding of fact that Wright’s demeanor did not evince remorse. In determining

       1
               These challenges, which rest on the Second and Ninth Amendments, are fully
addressed in the court’s previous opinion, 117 F.3d at 1268.

                                              2
whether a defendant is entitled to an acceptance of responsibility adjustment, a

district court may properly consider “the offender’s recognition of the

wrongfulness of his conduct, his remorse for the harmful consequences of that

conduct, and his willingness to turn away from that conduct in the future.” United

States v. Scroggins, 880 F.2d 1204, 1215 (11th Cir. 1989). In this case, the court

observed from Wright’s demeanor that

             within Mr. Wright’s own frame of reference, he is sincere
             in a lot of the things that he said, but I just do not think
             Mr. Wright believes that he was a member of a militia
             whose mission was to protect the citizens of the state of
             Georgia against threats from outside. I think Mr. Wright
             believes that he was a member of a group that was
             prepared to respond to whatever they perceived to be a
             threat or a problem. I’m not convinced by his testimony
             that they believed that they were carrying out the law as
             opposed to being ready to resist it.

(R.3 at 23.) These observations amount to factual findings that at the time of

sentencing Wright was not remorseful and did not think that his conduct was

wrong. These findings are entitled to great deference and alone support the denial

of a downward adjustment. See United States v. Hromada, 49 F.3d 685, 689 (11th

Cir. 1995) (“A district court occupies the unique position to evaluate whether a

defendant has accepted responsibility for his acts; its determination is entitled to

great deference on appeal.”).



                                           3
       Second, even if the district court’s conclusion rested exclusively on Wright’s

challenges to the constitutionality of his convictions, the district court’s refusal to

reduce Wright’s offense level was permissible. “Our case law permits a district

court to deny a defendant a reduction under § 3E1.1 based on conduct inconsistent

with acceptance of responsibility, even when that conduct includes the assertion of

a constitutional right.” United States v. Smith, 127 F.3d 987, 989 (11th Cir. 1997)

(en banc); see United States v. Henry, 883 F.2d 1010, 1011 (11th Cir. 1989)

(holding that denial of § 3E1.1 reduction is not “impermissible punishment” for

exercising Fifth or Sixth Amendment rights); see also United States v. McDonald,

935 F.2d 1212, 1222 (11th Cir. 1991) (rejecting defendant’s contention that §

3E1.1 “infringe[s] on his right to appeal because he was unable to express

acceptance of responsibility for his deeds at the sentencing hearing while he

anticipated bringing this appeal”); United States v. Jones, 934 F.2d 1199, 1200

(11th Cir. 1991) (“[T]he court’s consideration, at sentencing, of the defendants’

denial of culpability at trial does not impermissibly punish the defendant for

exercising his constitutional right to stand trial.”).

       For these reasons, we affirm Wright’s sentence.2



       2
              Nothing herein should be construed as modifying those portions of the previous
opinions addressing issues other than the sentencing issue.

                                              4
    REHEARING GRANTED IN PART; OPINION VACATED IN PART;

AFFIRMED.




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