                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 10 2000
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                     No. 99-1250
           v.                                            (D. Colorado)
 GARY NORMAN,                                      (D.C. No. 94-CR-350-1-S)

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before KELLY , ANDERSON , and BRISCOE , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Gary Norman, aka “Stitch,” was charged in March 1995 in a five-count

indictment with possession with intent to distribute methamphetamine, being a

felon in possession of a firearm, and three other charges involving firearms and a

destructive device. This arose out of an episode in which Mr. Norman was pulled

over following a traffic accident, and police officers discovered weapons and

methamphetamine on his person and in and around his vehicle.

      Mr. Norman pleaded not guilty on all charges and proceeded to trial. He

testified in his own defense and denied his guilt but admitted that he had

possessed methamphetamine and that he had possessed a firearm. The jury

convicted Mr. Norman of possessing with intent to distribute methamphetamine

and being a felon in possession of a firearm, but acquitted him of the remaining

charges. He received a 151-month sentence for the drug conviction and a

concurrent 120-month sentence for the firearms possession. He also received an

enhancement for obstruction of justice.

      On appeal from that conviction and sentence, we reversed the felon in

possession conviction and the obstruction of justice enhancement, vacated Mr.

Norman’s sentence and remanded the case for resentencing.     See United States v.

Norman , 129 F.3d 1393 (10th Cir. 1997). Mr. Norman was resentenced in May

1999. He requested an adjustment for acceptance of responsibility under U.S.S.G.

§ 3E1.1, which the district court denied. Mr. Norman’s criminal history category


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was determined to be Category II, with an offense level of 28. He declined the

opportunity to make a statement prior to sentencing. The court sentenced Mr.

Norman to 96 months imprisonment. He appeals, arguing only that the court

erred in not granting him a downward adjustment for acceptance of responsibility.

         U.S.S.G. § 3E1.1 provides for a two-point downward adjustment in a

defendant’s base offense level if “the defendant clearly demonstrates acceptance

of responsibility for his offense.” The defendant bears the burden of proving

entitlement to that adjustment.     See United States v. Hill , 197 F.3d 436, ___ (10th

Cir. 1999). “A district court’s decision regarding whether a defendant has

accepted responsibility for purposes of § 3E1.1 is a factual determination we

review only for clear error.”     Id. Further, because the sentencing judge “is in a

unique position to evaluate the defendant’s acceptance of responsibility,” his or

her determination “is entitled to great deference on review.” U.S.S.G. § 3E1.1,

comment. (n.5); see also United States v. Janusz , 135 F.3d 1319, 1325 (10th Cir.

1998).

         The commentary to § 3E1.1 states that the § 3E1.1 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.” U.S.S.G. § 3E1.1, comment. (n.2).

However, as Mr. Norman argues, and the government concedes, the fact that Mr.


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Norman chose to go to trial does not automatically and irrevocably bar him from

receiving a downward adjustment for acceptance of responsibility. There may be

“rare” situations where “a defendant may clearly demonstrate an acceptance of

responsibility for his criminal conduct even though he exercises his constitutional

right to a trial.”   Id. This is not the rare situation where a downward adjustment

is merited even though the defendant went to trial. Although Mr. Norman

admitted at trial that he possessed methamphetamine, he did not admit to any

intention to distribute the drug. He was convicted of possession with intent to

distribute methamphetamine. He never admitted any of the essential elements of

his crime before trial. He made no expression of remorse nor did he accept

responsibility for his crime at his resentencing hearing. We perceive no clear

error in the court’s determination not to grant him a downward adjustment.

         For the forgoing reasons, we AFFIRM the sentence imposed by the district

court.

                                                  ENTERED FOR THE COURT


                                                  Stephen H. Anderson
                                                  Circuit Judge




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