                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-1750
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Jose Barajas-Perez,                      *
                                         * [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: July 6, 2004
                                 Filed: November 26, 2004
                                  ___________

Before BYE, McMILLIAN, and RILEY, Circuit Judges.
                            ___________

PER CURIAM.

       Jose Barajas-Perez (Jose) appeals the sentence the district court imposed after
he pleaded guilty to conspiring to distribute and possess with intent to distribute 500
grams or more of methamphetamine, in violation of 21 U.S.C. § 846. At issue is the
district court’s denial of a sentencing reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1. We reverse.

      The relevant facts underlying this appeal relate to a March 7, 2002 controlled
drug purchase from Jose and co-defendant Maria Borja (Jose’s common law wife) in
a Wal-Mart parking lot. Jose admitted that the transaction was part of an agreement
with others to buy and sell drugs in Nebraska. During the March 7 transaction, Jose’s
nephew David Barajas-Perez (David) was in another vehicle in a nearby parking lot.
While Jose was in the course of completing the transaction, he made five to eight
calls from his cell phone to David’s cell phone. At one point, Jose drove his vehicle
to where David was parked, exited his vehicle, and approached David to speak with
him; Jose then returned to his vehicle. When Jose and Borja were apprehended by
officers, David left the scene in his vehicle. David was subsequently arrested and
charged along with Jose and Borja.

       After Jose had pleaded guilty, but before he was sentenced, Jose was called as
a witness at David’s criminal trial. As relevant, Jose testified in detail regarding the
drug transaction, steadfastly maintaining that David did not know about and was not
involved in the transaction or conspiracy. Essentially, Jose testified as follows.
David had temporarily moved to Jose’s house the day before the March 7 transaction,
because David’s utilities had been terminated; Jose agreed that because David had
only illegal identification and was an illegal alien, Jose would put the gas bill in his
name. On March 7, Jose had arranged for David (on his lunch break from work), to
follow Jose and Borja in his vehicle to take care of David’s gas bill. Jose intended
to rendezvous with the drug buyer and steal the money without providing the drugs,
and to then go to the gas company to take care of David’s bill. Jose never told David
about the planned drug transaction, and did not ask David to act as a lookout. The
rendezvous for the drug transaction ended up taking an extensive amount of time.
During this time, David called Jose’s cell phone on several occasions to inform Jose
that David was in a “big rush” and “had to return to work”; during these
conversations, Jose never told David that he was engaging in a drug transaction. At
one point, Jose went to David’s truck and told him to wait for a little bit because he
was “handling a business,” but again Jose did not tell David that he was engaged in
a drug transaction; he did not use his cell phone to call David this time because the
battery had died. David’s trial resulted in a hung jury.



                                          -2-
       At Jose’s February 2003 sentencing hearing, the district court assessed whether
to impose an obstruction-of-justice enhancement, see U.S.S.G. § 3C1.1, to which Jose
had objected, and whether to grant an acceptance-of-responsibility reduction. As to
the enhancement, the government argued that Jose had obstructed justice by lying at
David’s trial about David’s role in the conspiracy. But the court noted that David’s
trial had resulted in a hung jury and some reasonable jurors “must have believed all
or a portion of what David and [Jose] said.” The court then sustained Jose’s
objection, stating:

      I sustain the objection. Viewing these statements, the guidelines, in
      essence, I’m not quoting them now, the commentary to the guidelines
      make clear that I have got to look at statements such as this in a light
      essentially favorable to the party making the statement, and, of course,
      the motivating factor for that interpretative principle is at least twofold:
      One, we don’t want to penalize people for speaking the truth; as they
      know it, and two, we certainly don’t want to inhibit co-defendants
      testifying for or against other defendants, and with that in mind, I
      conclude the Government . . . has not persuaded me the obstruction of
      justice enhancement is proper.

      The district court, however, did not grant Jose an acceptance-of-responsibility
reduction, stating:

      Because the defendant, with respect to the acceptance of responsibility
      issue, has the responsibility of clearly demonstrating acceptance of
      responsibility, and among other things, establishing by the greater
      weight of the evidence that he’s truthfully admitted to conduct
      comprising the offenses of conviction and truthfully admitted or not
      falsely denied additional relevant conduct for which the defendant
      would be accountable, I find that the defendant has not persuaded me by
      the greater weight of the evidence that he’s accepted responsibility, and
      I therefore deny the objection to that extent.




                                          -3-
      This court reviews for clear error the denial of an acceptance-of-responsibility
reduction. See U.S.S.G. § 3E1.1, comment. (n.5) (sentencing court entitled to great
deference on review because it is in unique position to evaluate defendant’s
acceptance of responsibility); United States v. Perez, 270 F.3d 737, 739 (8th Cir.
2001) (clear-error standard of review), cert. denied, 535 U.S. 945 (2002). A
defendant is entitled to a reduction in offense level if he “clearly demonstrates
acceptance of responsibility for his offense,” see U.S.S.G. § 3E1.1(a), but the
defendant bears the burden of proving that he is entitled to such a reduction, see
United States v. Nguyen, 339 F.3d 688, 690 (8th Cir. 2003). In determining whether
a defendant qualifies for this reduction, appropriate considerations include the
following:

      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). Note that a defendant is not required to volunteer, or
      affirmatively admit, relevant conduct beyond the offense of conviction
      in order to obtain a reduction under subsection (a). A defendant may
      remain silent in respect to relevant conduct beyond the offense of
      conviction without affecting his ability to obtain a reduction under this
      subsection. 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.

See U.S.S.G. § 3E1.1, comment. (n.1(a)).

       There appears to be no dispute that Jose testified truthfully about his own
conduct. As is evident from the district court’s decision not to impose the
obstruction-of-justice enhancement, the court never concluded that Jose had made
false statements. Moreover, contrary to the government’s assertion, the record does
not reveal that Jose agreed with the prosecutor at the plea hearing that David was a
lookout. Rather, through an interpreter and his lawyer, Jose appeared to agree that

                                         -4-
the evidence recited by the prosecutor (including the prosecutor’s version of David’s
role) would “go before the jury.” As to the Government’s reliance on United States
v. Mercado, 64 Fed. Appx. 599, 600 (8th Cir.) (unpublished per curiam), cert. denied,
124 S. Ct. 584 (2003), we conclude Mercado is not dispositive of the acceptance-of-
responsibility issue under the facts of this case.

       Given that Jose testified truthfully as to his part in the criminal offense, and the
district court did not find that he had lied at David’s trial, we find that the court
clearly erred in denying Jose an acceptance-of-responsibility reduction. Accordingly,
we vacate Jose’s sentence and remand this case to the district court for further
proceedings consistent with this opinion.
                        ______________________________




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