                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                AUGUST 3, 2007
                                 No. 07-10543                  THOMAS K. KAHN
                             Non-Argument Calendar                 CLERK
                           ________________________

                       D. C. Docket No. 06-00152-CR-A-N

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee,

                                       versus

HAROLD OLENDA PEAGLER,

                                                        Defendant-Appellant.


                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Alabama
                         _________________________

                                  (August 3, 2007)

Before TJOFLAT, BARKETT and HULL, Circuit Judges.

PER CURIAM:

      Harold Olenda Peagler appeals his 120-month sentence, imposed after he

pled guilty to two counts of being a felon in possession of a firearm and one count
of being a felon in possession of ammunition, all in violation of 18 U.S.C.

§ 922(g)(1). On appeal, Peagler argues that the district court erred in failing to

apply an additional one-level reduction for acceptance of responsibility, pursuant

to U.S.S.G. § 3E1.1(b), because he timely notified the government of his intent to

plead guilty, thereby allowing the government to avoid preparing for trial.

      Peagler concedes that the government has the sole discretion to move for a

one-level reduction pursuant to § 3E1.1(b) and acknowledges that we have

indicated that we will not disturb a sentence based solely on the government’s

failure to move for such a reduction. Nonetheless, Peagler argues that we should

be able to correct a defendant’s sentence where, as here, the government abuses its

discretion in failing to move for a reduction based on its extensive preparation for

sentencing.

      We review the findings by the district court regarding a reduction for

acceptance of responsibility for clear error. United States v. Calhoon, 97 F.3d 518,

531 (11th Cir. 1996). A defendant bears the burden of establishing that he is

entitled to a reduction for acceptance of responsibility. See United States v.

Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999).

      The guidelines provide for two separate reductions for acceptance of

responsibility:

      (a) If the defendant clearly demonstrates acceptance of responsibility


                                           2
      for his offense, decrease the offense level by 2 levels.

      (b) If the defendant qualifies for a decrease under subsection (a), the
      offense level determined prior to the operation of subsection (a) is
      level 16 or greater, and upon motion of the government stating that
      the defendant has assisted authorities in the investigation or
      prosecution of his own misconduct by timely notifying authorities of
      his intention to enter a plea of guilty, thereby permitting the
      government to avoid preparing for trial and permitting the government
      and the court to allocate their resources efficiently, decrease the
      offense level by 1 additional level.

U.S.S.G. § 3E1.1 (emphasis added). “Because the Government is in the best

position to determine whether the defendant has assisted authorities in a manner

that avoids preparing for trial, an adjustment under subsection (b) may only be

granted upon a formal motion by the Government at the time of sentencing.” Id.,

comment. (n.6) (emphasis added). We have rejected a defendant’s claim for an

additional one-level reduction pursuant to § 3E1.1(b) where there was no

government motion filed in support of such a reduction. U.S. v. Wade, 458 F.3d

1273, 1282 (11th Cir. 2006), cert. denied, 127 S.Ct. 2096 (2007).

      It appears, however, that we are not precluded from reviewing for an abuse

of discretion the government’s refusal to file a motion for a reduction pursuant to

§ 3E1.1(b). See Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840,

1844, 118 L.Ed.2d 524 (1992) (holding, in the context of a motion for substantial

assistance, that “federal district courts have authority to review a prosecutor’s

refusal to file [a discretionary] motion . . . if they find that the refusal was based on


                                            3
an unconstitutional motive,” such as the defendant’s race or religion); see also

United States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000).

      However, upon review of the record and sentencing transcript, and upon

consideration of the parties’ briefs, we discern no reversible error because the

government’s refusal to file the relevant motion was permissible and was not based

on an unconstitutional motive. Thus, the district court did not clearly err in refusing

to grant the reduction for acceptance of responsibility.

      AFFIRMED.




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