                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 08-1590
                                 ________________

United States of America,                   *
                                            *
             Appellee,                      *
                                            * Appeal from the United States
      v.                                    * District Court for the
                                            * District of South Dakota.
Todd Fischer,                               *
                                            *
             Appellant.                     *


                                 ________________

                            Submitted: November 10, 2008
                                Filed: December 24, 2008
                                ________________

Before MURPHY, RILEY and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.

       Todd Fischer pled guilty to conspiring to distribute and possess with intent to
distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and the
district court1 sentenced him to 121 months’ imprisonment. Fischer appeals his
sentence, arguing that the district court should have granted his request for a two-level
reduction for acceptance of responsibility under United States Sentencing Guidelines


      1
         The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
§ 3E1.1(a). Because the district court did not clearly err in denying Fischer’s request,
we affirm.

I.    BACKGROUND

       Between 2004 and 2007, law enforcement officials investigated a conspiracy
to distribute methamphetamine in the vicinity of Mobridge and Wakpala, South
Dakota. Based on investigative interviews and information from a police source,
officials determined that Fischer was an active member of the conspiracy. On April
19, 2007, a federal grand jury returned an eleven-count indictment against Fischer and
five other individuals for their roles in the conspiracy. Only one of the eleven
counts—conspiracy to distribute and possess with intent to distribute
methamphetamine—pertained to Fischer. Fischer pled not guilty. On the morning of
his jury trial, however, Fischer informed the Government and the district court of his
intent to change his plea to guilty. Upon hearing this, the district court converted the
jury trial into a change of plea hearing and accepted Fischer’s guilty plea.

       Following his guilty plea, Fischer attended his presentence interview, where he
admitted to once giving coconspirator Tony Anderson a small amount of
methamphetamine to sell and described the quantity of methamphetamine he was
involved with in the conspiracy as “very low.” On January 17, 2008, the United
States Probation Office disclosed its initial Presentence Investigation Report (“PSR”),
finding 235.52 grams of methamphetamine attributable to Fischer and recommending
that Fischer receive a two-level reduction under § 3E1.1(a) for his acceptance of
responsibility. Fischer objected to sixteen paragraphs in the PSR that described the
majority of his criminal conduct, such as transporting methamphetamine from
Minnesota and Oklahoma to South Dakota, supplying methamphetamine to various
conspiracy members, and possessing a firearm in connection with his
methamphetamine deals. The Government also objected to the PSR, arguing that the
amount of methamphetamine attributable to Fischer was between 788.685 and

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1028.685 grams and that Fischer had not accepted responsibility based on his attempts
to minimize his criminal conduct and his last-minute guilty plea.

      On February 14, 2008, the Probation Office revised Fischer’s PSR by
increasing the amount of methamphetamine attributable to him to 788.685 grams and
by recommending that Fischer not receive a two-level reduction under § 3E1.1(a).
The Probation Office, however, kept unchanged all of the PSR paragraphs describing
Fischer’s conduct because it found the information underlying the paragraphs,
including statements from a police source and self-incriminating statements from
coconspirators, to be more credible than Fischer’s objections. After the Probation
Office released the revised PSR, Fischer and the Government reached an agreement
regarding many of their objections. The Government stipulated that the quantity of
methamphetamine attributable to Fischer was between 200 and 350 grams, and, in
exchange, Fischer withdrew his objections to the sixteen paragraphs in the initial PSR.
The parties could not, however, reach an agreement regarding the two-level
acceptance of responsibility reduction.

       At sentencing, the Government and Fischer informed the district court of their
agreement and their remaining disagreement about whether Fischer should receive the
two-level acceptance of responsibility reduction. After listening to the parties’
arguments, the district court agreed with the revised PSR’s recommendation that
Fischer was not entitled to the § 3E1.1(a) reduction. The court found that the
circumstances surrounding his guilty plea and presentence investigation showed that
Fischer had not clearly demonstrated acceptance of responsibility. Specifically, the
district court cited his efforts to downplay his role in the conspiracy and the quantity
of methamphetamine attributable to him during his presentence investigation
interview, the temporal proximity of his plea to the start of trial, and his false denials
and frivolous objections to the sixteen paragraphs of the initial PSR. Accordingly, the
district court adopted the factual findings in the revised PSR, as modified by the
parties’ stipulations, and determined that the advisory sentencing guidelines range was

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121 to 151 months’ imprisonment. After considering the sentencing factors in 18
U.S.C. § 3553(a), the district court sentenced Fischer to 121 months’ imprisonment.

       Fischer appeals his sentence, arguing that the district court committed
significant procedural error when it denied his request for a two-level reduction under
§ 3E1.1(a), thereby resulting in an improperly calculated advisory guidelines range.

II.   DISCUSSION

        We review a sentence in two parts: first, we review for significant procedural
error, such as an improper calculation of the advisory sentencing guidelines range; and
second, absent significant procedural error, we review for substantive reasonableness.
United States v. Magana-Aguirre, 546 F.3d 957, 959-60 (8th Cir. 2008); see also Gall
v. United States, 552 U.S. ---, 128 S. Ct. 586, 597 (2007). “In reviewing the sentence
for procedural errors, ‘we review a district court’s interpretation and application of the
guidelines de novo and its factual findings . . . for clear error.’” United States v.
Howe, 538 F.3d 842, 854 (8th Cir. 2008) (quoting United States v. Pate, 518 F.3d 972,
975 (8th Cir. 2008)) (alteration omitted). “We review a denial of a reduction for
acceptance of responsibility for clear error on the part of the district court.” United
States v. Canania, 532 F.3d 764, 772 (8th Cir. 2008), cert. denied, 555 U.S. ---, 77
U.S.L.W. 3296 (Nov. 17, 2008) (No. 08-6775). We find clear error only when we are
left “with the definite and firm conviction that a mistake has been committed.” United
States v. Lalley, 257 F.3d 751, 758 (8th Cir. 2001) (internal quotation omitted).

      Under § 3E1.1(a), Fischer “has the burden to establish that he has clearly
demonstrated that he is entitled to a two-level reduction in his offense level for
acceptance of responsibility.” See United States v. Herron, 539 F.3d 881, 887-88 (8th
Cir. 2008). “In determining whether a defendant qualifies for an acceptance of
responsibility reduction, the district court may consider aspects of the defendant’s
conduct beyond the mere fact of his guilty plea.” United States v. Long Soldier, 431

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F.3d 1120, 1123 (8th Cir. 2005); cf. Canania, 532 F.3d at 772-73 (“Even a plea of
guilty is no guarantee of a reduction for acceptance of responsibility.”). The
sentencing guidelines direct the district court to consider multiple factors in its §
3E1.1(a) determination, including:

      (a) truthfully admitting the conduct comprising the offense(s) of
      conviction, and truthfully admitting or not falsely denying any additional
      relevant conduct for which the defendant is accountable under § 1B1.3
      (Relevant Conduct). . . . However, a defendant who falsely denies, or
      frivolously contests, relevant conduct that the court determines to be true
      has acted in a manner inconsistent with acceptance of responsibility; . .
      . [and]

      (h) the timeliness of the defendant's conduct in manifesting the
      acceptance of responsibility.

United States v. Kiel, 454 F.3d 819, 824 (8th Cir. 2006) (quoting U.S.S.G. § 3E1.1
cmt. n.1). Because “[t]he sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility[,] . . . the determination of the sentencing
judge is entitled to great deference on review.” Peters v. United States, 464 F.3d 811,
812 (8th Cir. 2006) (quoting U.S.S.G. § 3E1.1 cmt. n.5).

       Fischer argues that the district court erred in holding that he did not clearly
demonstrate his acceptance of responsibility under § 3E1.1(a) because he pled guilty
prior to trial and truthfully admitted his criminal conduct in his presentence
investigation interview. We disagree because the district court did not clearly err in
determining that Fischer did not clearly demonstrate acceptance of responsibility.

       In considering the § 3E1.1(a) factors, the district court first looked at whether
Fischer had truthfully admitted his offense conduct and not falsely denied or
frivolously contested relevant conduct under U.S.S.G. § 1B1.3. See United States v.
Erhart, 415 F.3d 965, 971 (8th Cir. 2005) (“[U]nder [§ 3E1.1(a)], the defendant must


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accept responsibility for all of the conduct that is part of his conviction. The
defendant may not minimize conduct or partially accept responsibility.”) (emphasis
in original); United States v. Bell, 411 F.3d 960, 963 (8th Cir. 2005) (“[A] defendant
who falsely denies or frivolously contests his relevant conduct has not accepted
responsibility.”) (citing U.S.S.G. § 3E1.1 cmt. n.1(a)).

        Fischer’s presentence investigation interview answers and his initial objections
to the sixteen paragraphs in the PSR varied significantly from the factual basis recited
at his guilty plea hearing and the conduct subsequently deemed admitted in the PSR
based on his withdrawal of his objections. See United States v. Paz, 411 F.3d 906,
909 (8th Cir. 2005) (holding that a court may consider the facts in a PSR for
sentencing purposes where the defendant did not object to or withdrew his objection
to those facts). For example, at the plea hearing, Fischer admitted to operating a
methamphetamine distribution network in which he supplied multiple dealers with
methamphetamine, collected proceeds from his dealers’ methamphetamine sales, and
paid dealers for their services with personal quantities of methamphetamine.
However, in his presentence investigation interview, Fischer admitted only to one
methamphetamine deal with Tony Anderson and for being responsible for a “low
amount” of methamphetamine. In his objections to the PSR, Fischer also denied
transporting methamphetamine from Minnesota and Oklahoma into South Dakota,
supplying methamphetamine to multiple conspiracy members, and possessing a
firearm in connection with his methamphetamine deals; however, Fischer later
admitted to all of this conduct by withdrawing his objections at sentencing. Because
the record demonstrates that Fischer minimized his offense conduct and falsely denied
or frivolously objected to relevant conduct, we find no clear error in the district
court’s finding that this factor suggests that Fischer did not accept responsibility.

      In considering the § 3E1.1(a) factors, the district court also looked at the
timeliness of Fischer’s conduct in manifesting the acceptance of responsibility,
recognizing that Fischer waited until the morning of his jury trial to notify the court

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and the Government of his intent to plead guilty. See Erhart, 415 F.3d at 972 (holding
that a district court in denying an acceptance of responsibility reduction may consider
that the guilty plea was “of the ‘last hour’ variety, offered on the eve of trial”);
U.S.S.G. § 3E1.1 cmt. n.1(h). Based upon the record, we find no clear error in the
district court’s finding that Fischer’s guilty plea was of the last hour variety, which
supports the district court’s conclusion that Fischer did not accept responsibility.

       Upon considering Fischer’s attempts to minimize his offense conduct, his false
denials or frivolous objections to relevant conduct, and the lateness of his guilty plea,
the district court determined that Fischer did not clearly demonstrate acceptance of
responsibility. Because we cannot say that we are left with the definite and firm
conviction that a mistake has been committed, we find that the district court did not
clearly err in denying Fischer a two-level reduction under § 3E1.1(a).

       After finding that the district court did not commit significant procedural error,
as we have here, we would ordinarily review the substantive reasonableness of the
district court’s sentence. See Magana-Aguirre, 546 F.3d at 960. However, because
Fischer did not provide any argument in his briefs regarding the reasonableness of his
sentence, he is deemed to have waived this issue on appeal. See United States v.
Gustafson, 528 F.3d 587, 589 n.2 (8th Cir. 2008).

III.   CONCLUSION

       For the foregoing reasons, we affirm Fischer’s sentence.
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