                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-15811         ELEVENTH CIRCUIT
                                                                  OCTOBER 28, 2011
                                        Non-Argument Calendar
                                                                      JOHN LEY
                                      ________________________
                                                                       CLERK

                            D.C. Docket No. 1:10-cr-00037-SPM-AK-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,


                                                versus


ARTHUR BRENT STANLEY,
a.k.a. Stan Yates,
a.k.a. Stanley Yates,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Northern District of Florida
                                 ________________________

                                           (October 28, 2011)
Before BARKETT, WILSON and BLACK, Circuit Judges.

PER CURIAM:


      Arthur Brent Stanley appeals his total 240-month sentence for receipt and

distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and

(b)(1), and possession of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B). On appeal, Stanley argues that the district court erred in

applying a two-point sentence enhancement for obstruction of justice pursuant to

U.S.S.G. § 3C1.1. Stanley also argues that the court erred in denying a two-point

sentence reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.

                                          I.

      We review a district court’s findings of fact under a clear error standard.

United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005). “For a factual

finding to be clearly erroneous, this court, after reviewing all of the evidence, must

be left with a definite and firm conviction that a mistake has been committed.”

United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004)(quotation

omitted). The government bears the burden of establishing by a preponderance of

the evidence any facts necessary to support a sentence enhancement. United States

v. Askew, 193 F.3d 1181, 1183 (11th Cir. 1999).



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      Section 3C1.1 of the Guidelines states that the base offense level is

increased by two points if the defendant “willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice with respect to the

investigation, prosecution, or sentencing” of the charged conduct. U.S.S.G.

§ 3C1.1. According to the application notes, this includes instructing another to

destroy or conceal material evidence and providing materially false information to

the court. Id., comment. n.4(D), (F). The comments define “material” as any

evidence, fact, or information that “would tend to influence or affect the issue

under determination.” Id., comment. n.6.

      In this case, the government offered sufficient evidence for the court to find

by a preponderance of the evidence that Stanley engaged in multiple instances of

obstructive behavior. Stanley misrepresented himself as “Stanley Yates” after his

arrest, using the false name during his initial appearance and in documents filed

with the court. Stanley also instructed another person to check if his camper had

been searched by the police and to remove items. Lastly, Stanley falsely indicated

on the financial affidavit that he filed with the court that he owned no real estate,

automobiles, or other valuable property.

      Alternatively, any error is harmless because the district court sentenced

Stanley below the guideline range and explicitly stated that its resolution of

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Stanley’s objection did not affect the total sentence imposed. Even if both of the

matters addressed on appeal had been resolved in Stanley’s favor, the high-end of

his guideline range would have been 210 months (adjusted offense level 35 and

168-210 months being the amended range). Stanley does not contend that his

sentence was unreasonably severe, and the record does not show that a 30-month

variance would be unreasonable.

                                          II.

      We review a district court’s findings of fact under a clear error standard.

United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005). We have held that,

“[b]ecause demonstration of whether or not the defendant has personally accepted

responsibility for his criminal conduct requires a consideration of both objective

factors and subjective considerations of the defendant's demeanor and sincerity,

the district court's determination will not be overturned unless it is without

foundation.” United States v. Castillo-Valencia, 917 F.2d 494, 500 (11th Cir.

1990). The defendant bears the burden of establishing, by a preponderance of the

evidence, the factual basis for a sentence reduction. United States v. Askew, 193

F.3d 1181, 1183 n.3 (11th Cir. 1999).

      Section 3E1.1 of the Guidelines states that the base offense level is

decreased by two points if the defendant “clearly demonstrates acceptance of

                                          4
responsibility for his offense.” U.S.S.G § 3E1.1(a). The application notes explain

that conduct resulting in an obstruction of justice enhancement “ordinarily

indicates that the defendant has not accepted responsibility.” Id., comment. n.4.

However, there may be “extraordinary cases” in which both adjustments are

appropriate. Id.

      In this case, the district court had a rational foundation for denying the

adjustment, particularly in light of the obstruction of justice enhancement. The

court found, both independently and by accepting the factual allegations in the

PSI, that Stanley had engaged in multiple instances of obstructive behavior.

      Alternatively, as in Issue One, any possible error is harmless. The district

court discussed both Stanley’s objection to the obstruction of justice enhancement

and his objection to the denial of an acceptance of responsibility reduction as a

single objection. Accordingly, the court’s explicit statement that its resolution of

Stanley’s objection did not affect the total sentence imposed encompassed this

issue as well.

      AFFIRMED.




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