                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 10-14596                ELEVENTH CIRCUIT
                         Non-Argument Calendar               MAY 18, 2011
                       ________________________               JOHN LEY
                                                               CLERK
                D.C. Docket No. 8:09-cr-00516-SCB-AEP-1

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

JORGE ESTANISLAO BACA-SANCHEZ,

                                                     Defendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (May 18, 2011)

Before BARKETT, MARCUS and FAY, Circuit Judges.

PER CURIAM:
      Jorge Estanislao Baca-Sanchez appeals his 57-month sentence for presence

in the United States following deportation subsequent to an aggravated-felony

conviction, in violation of 8 U.S.C. § 1326(a), (b)(2). He argues that the district

court clearly erred in failing to apply a two-level acceptance-of-responsibility

reduction to his Sentencing Guidelines offense level, pursuant to U.S.S.G.

§ 3E1.1. For the reasons set forth below, we affirm.

                                          I.

      Baca-Sanchez, a native and citizen of Nicaragua, first entered the United

States in October 1982. His application for asylum was denied in October 1983,

but he did not leave the United States voluntarily. In February 2000, he pled nolo

contendere to the aggravated felony of possession of a firearm by a convicted

felon, and he was deported to Nicaragua in May 2002. He reentered the United

States later that year. In October 2009, federal agents came into contact with

Baca-Sanchez while he was detained at a county jail in Florida. He was indicted

on one count of being found in the United States following deportation subsequent

to an aggravated-felony conviction, in violation of § 1326(a), (b)(2), and

proceeded to trial.

      The government presented six witnesses at trial, three of whom Baca-

Sanchez cross-examined. He also testified on his own behalf, describing the

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1980s civil war in Nicaragua in which he allegedly fought, his unsuccessful

asylum application, and his desire to live “the American way.” When asked

whether he had returned to the United States voluntarily, he said, “They make me,

you know. There’s too much trouble over there. I had fighting there, and the guy

fighting, said they would kill me.” On cross-examination, he admitted that he had

been deported. He said at first that he did not know whether he was a convicted

felon, then admitted to his prior felonies and offered justifications for his conduct.

He said that he had returned to the United States because it is safe and his family

is here. When asked whether he had sought permission to return to the United

States, he stated, “I want to, but I was waiting the past 10 years.” The government

reiterated that he had not sought permission, to which Baca-Sanchez replied,

“Well, I apologize for that.” The jury found Baca-Sanchez guilty.

      The probation office calculated a total offense level of 16, pursuant to

U.S.S.G. § 2L1.2(a), (b)(1)(C). It did not apply an acceptance-of-responsibility

reduction pursuant to § 3E1.1, on grounds that Baca-Sanchez had pled not guilty,

he had proceeded to trial, and there was no other information indicating that he

had accepted responsibility. As Baca-Sanchez was in criminal history category

VI, he faced a guideline range of 46-57 months’ imprisonment.

      Baca-Sanchez objected that he was entitled to a two-level reduction for

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acceptance of responsibility. At the sentencing hearing, counsel stated that Baca-

Sanchez had chosen to exercise his right to trial rather than concede because he

fears for his life if he returns to his home country. Baca-Sanchez added that he

had lived in the United States for almost 30 years and that he had tried to change

his life, but he “got in trouble” and went back to jail. He suggested that he might

have “bad luck.” Counsel argued that Baca-Sanchez had never denied the

elements of the offense and had cooperated with law enforcement. She believed

that a two-level acceptance-of-responsibility reduction was appropriate.

      The court found that Baca-Sanchez admitted the elements of the offense

when he took the witness stand and essentially asked for a jury pardon, but prior to

trial, he denied the essential elements of the offense. He required the court to

impanel a jury and the government to introduce six witnesses. Additionally, the

court was “not sure there[ had] ever been any . . . remorse.” The court overruled

the objection and sentenced Baca-Sanchez to 57 months’ imprisonment.

                                          II.

      “We review a denial of a reduction of sentence for an acceptance of

responsibility for clear error, and that finding is entitled to great deference on

review and should not be disturbed unless it is without foundation.” United States

v. Knight, 562 F.3d 1314, 1322 (11th Cir.), cert. denied, 130 S.Ct. 192 (2009)

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(quotation marks omitted). “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, is convicted, and only then admits guilt and

expresses remorse.” § 3E1.1, comment. (n.2). In rare circumstances, a defendant

who goes to trial may nevertheless clearly demonstrate an acceptance of

responsibility for his criminal conduct, such as where the defendant goes to trial to

assert and preserve constitutional or legal challenges that do not relate to factual

guilt. Id. In such instances, the determination of whether the defendant has

accepted responsibility will be based primarily on his pretrial statements and

conduct. Id.

      The district court does not clearly err in denying a reduction where the

defendant contests his guilt of all of the charges against him and attempts to

minimize his role despite ample proof to the contrary, United States v. Caraballo,

595 F.3d 1214, 1233 (11th Cir. 2010), or where he attempts to avoid a factual

determination of guilt by challenging the evidence and waiting until the eve of

trial to stipulate to the elements of the crime, see Knight, 562 F.3d at 1328.

      Baca-Sanchez went to trial, requiring the government to call six witnesses,

three of whom Baca-Sanchez cross-examined. Despite whatever information he

might have given law enforcement officers during the investigation, he did not

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stipulate any facts supporting an element of the offense prior to trial. He does not

suggest that he proceeded to trial only to preserve an appeal of an issue such as a

constitutional, legal, or evidentiary ruling. Rather, he sought to minimize his

conduct and to persuade the jury to acquit him based on his alleged fear of

returning to Nicaragua. Counsel told the sentencing court that Baca-Sanchez had

chosen to go to trial rather than concede his guilt because he thought an acquittal

would prevent his deportation. The district court described Baca-Sanchez’s

testimony as essentially a request for a jury pardon, and it found that Baca-

Sanchez had never expressed remorse for his conduct. The record indicates that

he never apologized or showed contrition for his conduct, except that, when

pressed during cross-examination, he apologized for having failed to seek

permission to return to the United States.

      Thus, Baca-Sanchez put the government to its proof, denied the essential

elements of the offense until well into the trial, attempted to minimize his conduct

and to avoid a determination of factual guilt, and arguably failed to express

remorse. See § 3E1.1, comment. (n.2); Caraballo, 595 F.3d at 1233; Knight, 562

F.3d at 1328. Under the circumstances, the district court did not clearly err in

finding that Baca-Sanchez had failed to accept responsibility within the meaning

of § 3E1.1. See Knight, 562 F.3d at 1328.

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For the foregoing reasons, we affirm Baca-Sanchez’s sentence.

AFFIRMED.




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