                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-3272
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
     v.                                  * District Court for the
                                         * Eastern District of Missouri.
Horacio Cruz-Zuniga,                     *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: April 15, 2009
                                 Filed: July 1, 2009
                                   ___________

Before RILEY, BENTON, and SHEPHERD, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

       A jury convicted Horacio Cruz-Zuniga (Cruz-Zuniga) of one count of conspiracy
to distribute 500 grams or more of a mixture or substance containing
methamphetamine. The district court1 sentenced Cruz-Zuniga to 480 months
imprisonment and a lifetime term of supervised release. Cruz-Zuniga appeals, arguing
the district court erred by (1) refusing to give Cruz-Zuniga’s proposed jury instruction
regarding co-defendants’ testimony; (2) giving the Eighth Circuit’s model instruction


      1
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
on reasonable doubt with the “mere possibility of innocence” language; (3) sentencing
Cruz-Zuniga based on an amount of drugs that was not charged in the indictment or
found beyond a reasonable doubt by the jury; (4) refusing to grant a downward
sentencing variance equivalent to a two-level reduction for acceptance of
responsibility; and (5) failing to consider all the factors in 18 U.S.C. § 3553(a) and
adequately explain the court’s reasoning, improperly comparing Cruz-Zuniga to a
defendant in a previous case, and imposing an unreasonable sentence. We affirm.

I.    BACKGROUND
      A law enforcement investigation led to Cruz-Zuniga’s indictment on one count
of conspiracy to distribute 500 grams or more of a mixture or substance containing
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Cruz-Zuniga pled
not guilty.

       Three of the participants in the methamphetamine conspiracy agreed to
cooperate with the government by testifying at Cruz-Zuniga’s trial. Cruz-Zuniga
offered a jury instruction on the credibility of cooperating witnesses. The district court
denied Cruz-Zuniga’s instruction and used Eighth Circuit Model Instruction 4.05 to
instruct the jury on the credibility of cooperating witnesses. The district court also
refused Cruz-Zuniga’s proposed instruction on reasonable doubt, instead instructing
the jury on reasonable doubt as defined in Eighth Circuit Model Instruction 3.11. The
jury found Cruz-Zuniga guilty.

      The Probation Office prepared a presentence investigation report, which
determined the drug quantity attributable to Cruz-Zuniga was more than fifteen
kilograms of methamphetamine. After hearing argument at Cruz-Zuniga’s sentencing
hearing, the district court agreed more than fifteen kilograms of methamphetamine
were attributable to Cruz-Zuniga.




                                           -2-
       At sentencing, Cruz-Zuniga argued he should receive the equivalent of a two-
level decrease in his offense level for acceptance of responsibility, even though Cruz-
Zuniga did not accept responsibility. Cruz-Zuniga contended the denial of a two-level
decrease would punish Cruz-Zuniga for exercising his right to stand trial. The district
court rejected this argument.

       The district court calculated an offense level of 43 and a criminal history
category of I, resulting in an advisory United States Sentencing Guidelines (Guidelines
or U.S.S.G.) range of life imprisonment. In explaining Cruz-Zuniga’s sentence, the
district court specifically discussed a number of the sentencing factors in 18 U.S.C. §
3553(a). The district court then imposed a below-Guidelines sentence of 480 months
imprisonment and a lifetime term of supervised release. This appeal followed.

II.    DISCUSSION
       A.     Jury Instructions
       “A defendant is entitled to a specific jury instruction ‘that conveys the substance
of his request if his request is timely, it is supported by evidence in the case, and is a
correct statement of the law.’” United States v. Whitehead, 176 F.3d 1030, 1037 (8th
Cir. 1999) (citing United States v. Tucker, 137 F.3d 1016, 1036 (8th Cir. 1998)).
However, a defendant “‘is not entitled to a particularly-worded instruction when the
instructions actually given by the trial court adequately and correctly cover the
substance of the requested instruction.’” United States v. Long, 977 F.2d 1264, 1272
(8th Cir. 1992) (quoting United States v. Lewis, 718 F.2d 883, 885 (8th Cir. 1983)).
“‘The district court has wide discretion in formulating appropriate jury instructions.’”
Id. (quoting United States v. McQuarry, 726 F.2d 401, 402 (8th Cir. 1984) (per
curiam)). We review the district court’s denial of a proposed jury instruction for abuse
of discretion, reversing “only if the district court’s alleged erroneous failure to give a
particular instruction was prejudicial.” Whitehead, 176 F.3d at 1037 (citation omitted).




                                           -3-
             1.     Co-Defendants’ Testimony
       Cruz-Zuniga contends he was prejudiced by the district court’s use of Eighth
Circuit Model Jury Instruction 4.05A (Instruction 4.05A), entitled
“Credibility–Cooperating Witness,” and the district court abused its discretion by
refusing Cruz-Zuniga’s proposed non-pattern instruction on credibility of cooperating
witnesses. Cruz-Zuniga specifically objects to the district court instructing the jury as
follows: “You have heard evidence that Ruben Rocha, Javiel Menchaca, and Nestor
Menchaca hope to receive a reduced sentence on criminal charges pending against
them in return for their cooperation with the Government in this case.” (emphasis
added). Cruz-Zuniga claims Instruction 4.05A did not fully explain the benefits the co-
defendants would receive, and asserts the jury should have been instructed: “The
agreement in this case may provide [the cooperating witness] with the expectation that
he could receive a less severe sentence.” (emphasis added). Put another way, Cruz-
Zuniga claims “the word ‘expectation’ more accurately describes the mindset” of the
cooperating witnesses than the word “hope.”

       Although the words “hope” and “expectation” may carry distinctive meanings
in other contexts, there is no meaningful difference between a cooperating witness who
has the “hope” of receiving a reduced sentence and one who has the “expectation” of
receiving a reduced sentence. Indeed, “hope” and “expectation” are generally
recognized as synonyms. See William C. Burton, Burton’s Legal Thesaurus 221 (John
Drukker, ed., Mc-Graw-Hill 1998 (1980) (listing “hope” as a synonym for
“expectation”). Regardless of whether the word “hope” or “expectation” was used to
describe the subjective mindset of cooperating witnesses, Instruction 4.05A adequately
and correctly conveyed the substance of Cruz-Zuniga’s request that the jury be
informed a cooperating witness’s testimony may be influenced by the possibility of
receiving a reduced sentence.




                                          -4-
       Consistent with Instruction 4.05A, the district court instructed the jury, “[y]ou
may give the testimony of these witnesses such weight as you think they deserve.
Whether or not testimony of a witness may have been influenced by his hope of
receiving a reduced sentence is for you to decide.” Furthermore, Cruz-Zuniga’s
counsel had the opportunity to cross-examine each cooperating witness, inquire into
his motives for cooperating with the government, and attempt to discredit his
testimony. During closing argument, Cruz-Zuniga’s counsel had sufficient opportunity
to persuade the jury the witnesses were not credible based upon this “hope” or
“expectation.” Cruz-Zuniga fails to establish he was prejudiced in any way by the
instruction’s use of the word “hope” instead of “expectation.” The district court did
not abuse its discretion by using Instruction 4.05A to instruct the jury on the credibility
of cooperating witnesses.

             2.    Reasonable Doubt
      Cruz-Zuniga next contends the district court abused its discretion by giving
Eighth Circuit Model Instruction 3.11 (Instruction 3.11), which discusses and defines
reasonable doubt. Cruz-Zuniga argues the statement, “[a] reasonable doubt is a doubt
based upon reason and common sense, and not the mere possibility of innocence,” is
prejudicial because it impermissibly shifts the burden of proof to the defendant.

       This circuit has repeatedly upheld the use of Instruction 3.11, specifically
upholding the “mere possibility of innocence” language challenged by Cruz-Zuniga.
See United States v. Foster, 344 F.3d 799, 802 (8th Cir. 2003) (citing United States v.
Rosso, 179 F.3d 1102, 1104-05 (8th Cir. 1999)); United States v. Gibson, 105 F.3d
1229, 1233-34 (8th Cir. 1997); see also United States v. Harris, 974 F.2d 84, 85 (8th
Cir. 1992). “These cases have established the law of the circuit on this point.” Foster,
344 F.3d at 802. Only the court en banc could overturn this circuit’s precedent. Id.
We therefore conclude the district court did not abuse its discretion by instructing the
jury on the definition of reasonable doubt set forth in Instruction 3.11.



                                           -5-
      B.      Drug Quantity
      Cruz-Zuniga claims the district court erred by applying a two-level sentencing
enhancement based on a quantity of drugs (more than fifteen kilograms) that was not
charged in the indictment or found by a grand jury. Cruz-Zuniga maintains the district
court’s finding the drug quantity by a preponderance of the evidence violates his Fifth
and Sixth Amendment rights.

       We review de novo constitutional challenges, United States v. Bates, 77 F.3d
1101, 1104 (8th Cir. 1996), and the district court’s interpretation and application of the
advisory Guidelines, United States v. Whiting, 522 F.3d 845, 849 (8th Cir. 2008). After
United States v. Booker, 543 U.S. 220 (2005), “judicial factfinding is permissible at
sentencing so long as the district court understands that the sentencing guidelines are
advisory only.” United States v. Brave Thunder, 445 F.3d 1062, 1065 (8th Cir. 2006).
Under an advisory sentencing regime, “the district court is entitled to determine
sentences based upon judge-found facts and uncharged conduct” where the defendant
is “not sentenced in excess of the statutory maximum.” United States v. Garcia-Gonon,
433 F.3d 587, 593 (8th Cir. 2006) (citing United States v. Red Elk, 426 F.3d 948, 951
(8th Cir. 2005)); see also United States v. Okai, 454 F.3d 848, 851 (8th Cir. 2006)
(explaining, “after Booker, facts underlying sentencing enhancements that are not used
to increase the defendant’s sentence above the congressionally authorized maximum
need not be alleged in the indictment to pass constitutional muster” (citations omitted)).
“[S]entencing judges are only required to find sentence-enhancing facts by a
preponderance of the evidence.” Garcia-Gonon, 433 F.3d at 593 (citing United States
v. Pirani, 406 F.3d 543, 551 n.4 (8th Cir. 2005) (en banc)). The district court
understood the Guidelines were advisory and did not sentence Cruz-Zuniga above the
statutory maximum. We conclude the district court did not err by engaging in judicial
factfinding and applying a preponderance of the evidence standard to determine the
drug quantity attributable to Cruz-Zuniga.




                                           -6-
      C.     Acceptance of Responsibility
      Cruz-Zuniga next contends the district court erred by refusing to grant a
downward variance equivalent to a two-level Guidelines reduction for acceptance of
responsibility. Cruz-Zuniga argues denying an acceptance of responsibility credit to a
defendant who stands trial (and who does not accept responsibility) punishes the
defendant for exercising his constitutional right to stand trial. We reject this argument.

        It is generally permissible to grant leniency to defendants who plead guilty, and
to withhold leniency from defendants who go to trial. See Corbitt v. New Jersey, 439
U.S. 212, 223 (1978) (explaining courts are entitled to “recognize[] the fact that there
ha[s] been a plea and that in sentencing it is constitutionally permissible to take that fact
into account . . . it is not forbidden to extend a proper degree of leniency in return for
guilty pleas.”). Addressing a defendant’s request for a two-level Guidelines reduction
for acceptance of responsibility, this court has specifically “held that [U.S.S.G. §] 3E1.1
does not punish a defendant for exercising his constitutional right to a jury trial.”
United States v. Smith, 40 F.3d 933, 935 (8th Cir. 1994) (citing United States v. Young,
875 F.2d 1357, 1360-61 (8th Cir. 1989)). “Under [§] 3E1.1, an acceptance-of-
responsibility reduction is simply ‘not intended to apply to a defendant who puts the
government to its burden of proof at trial by denying factual elements of guilt.’” Id. at
935-36 (quoting U.S.S.G. § 3E1.1 cmt. n.2). Although it is possible in certain
circumstances for a defendant to stand trial and still get a reduction for acceptance of
responsibility, see U.S.S.G. § 3E1.1, application n.2, no such circumstances existed in
Cruz-Zuniga’s case. The district court’s refusal to grant Cruz-Zuniga a downward
variance equivalent to a two-level Guidelines reduction for acceptance of responsibility
did not wrongfully punish Cruz-Zuniga for exercising his constitutional right to stand
trial.2

       2
       Cruz-Zuniga also asserts the district court erred by failing to address his
acceptance-of-responsibility argument. On the contrary, after Cruz-Zuniga’s counsel
argued this point extensively at sentencing, the district judge discussed the argument
with Cruz-Zuniga’s counsel, made several comments, and indicated he understood the

                                            -7-
       D.      Cruz-Zuniga’s Sentence
       Finally, Cruz-Zuniga asserts the district court did not specifically apply all of the
18 U.S.C. § 3553(a) sentencing factors to Cruz-Zuniga, did not adequately explain the
rationale for the sentence, and improperly likened Cruz-Zuniga’s case to that of another
drug trafficker the court previously sentenced. Cruz-Zuniga also argues his sentence
is substantively unreasonable.

       In reviewing a sentence, this court “must first ensure that the district court
committed no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, . . . failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence.” Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597 (2007). If the
sentence is procedurally sound, we “then consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.” Id.

      Gall sets forth the sentencing procedure the district court should follow. After
correctly calculating the Guidelines range and “giving both parties an opportunity to
argue for whatever sentence they deem appropriate, the district judge should then
consider all of the § 3553(a) factors to determine whether they support the sentence
requested by a party.” Id. at 596. The district court “must make an individualized
assessment based on the facts presented, . . . [and] must adequately explain the chosen
sentence to allow for meaningful appellate review.” Id. at 597. “In explaining the
chosen sentence and analyzing the relevant § 3553(a) factors, ‘a district court is not
required to provide “a full opinion in every case,” but must “set forth enough to satisfy
the appellate court that he has considered the parties’ arguments and has a reasoned


argument. This is more than adequate to satisfy us that the district court fully
considered Cruz-Zuniga’s argument. See United States v. Gray, 533 F.3d 942, 944
(8th Cir. 2008) (explaining, “not every reasonable argument advanced by a defendant
requires a specific rejoinder by the judge”); see also Rita v. United States, 551 U.S.
338, 127 S. Ct. 2456, 2468-69 (2007).

                                            -8-
basis for exercising his own legal decisionmaking authority.”’” United States v. Hill,
552 F.3d 686, 691 (8th Cir. 2009) (quoting United States v. Robinson, 516 F.3d 716,
718 (8th Cir. 2008) (in turn quoting Rita, 127 S. Ct. at 2468)). The “sentencing court
need not ‘categorically rehearse each of the [§] 3553(a) factors on the record when it
imposes a sentence as long as it is clear that they were considered.’” United States v.
Jones, 509 F.3d 911, 915 (8th Cir. 2007), cert. denied, 128 S. Ct. 2891 (2008) (mem)
(quoting United States v. Dieken, 432 F.3d 906, 909 (8th Cir. 2006)); see also Rita, 127
S. Ct. at 2468-69.

       At sentencing, the district court expressly considered a number of the relevant §
3553(a) factors and explained how each factor weighed for or against Cruz-Zuniga.
Addressing the “nature and circumstances of the offense” under § 3553(a)(1), the
district court discussed the “scourge that methamphetamine has on our community” and
the fact Cruz-Zuniga “imported kilograms of methamphetamine into our community.”
The district court also explained, “[t]he history and characteristics of the defendant are
highly unusual in that he has no prior criminal history, but that’s not the determining
factor here.” In order “[t]o protect the public,” the district court declared Cruz-Zuniga
would receive “a substantial sentence, but if he ever gets out we know that he will be
deported from this country.” The district court’s explanation for the sentence imposed
and express consideration of several of the § 3553(a) factors in no way constitutes
significant procedural error.

       Cruz-Zuniga takes issue with the district court’s statement it was imposing a
sentence of 480 months imprisonment, a downward variance from Cruz-Zuniga’s
Guidelines range of life imprisonment, because the district court likened Cruz-Zuniga
to “a substantial heroin dealer” the court previously sentenced to 420 months
imprisonment. Cruz-Zuniga does not assert the district court erred by comparing Cruz-
Zuniga to a previous defendant, but merely complains the district court should have
given Cruz-Zuniga an even more dramatic downward variance because the heroin
dealer was involved with weapons and violence, and Cruz-Zuniga was not. The district

                                           -9-
court was entitled to consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar
conduct[.]” 18 U.S.C. § 3553(a)(6). We see no basis to conclude the district court’s
comparison was in any way improper or an abuse of discretion.

       Further, “giv[ing] due deference to the district court’s decision that the § 3553(a)
factors, on a whole,” justify Cruz-Zuniga’s sentence, Gall, 128 S. Ct. at 597, our review
of Cruz-Zuniga’s sentence reveals no basis for concluding Cruz-Zuniga’s below-
Guidelines sentence is substantively unreasonable.

III.   CONCLUSION
       We affirm the sentence and judgment of the district court.
                        ______________________________




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