                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                     PUBLISH
                                                                       January 3, 2007
                   UNITED STATES CO URT O F APPEALS                Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,
       v.                                                No. 05-2349
 H ECTO R M A N U EL A G U A YO-
 GO NZA LEZ,

              Defendant-Appellant.



         A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                  FOR T HE D ISTRICT OF NEW M EXICO
                          (D.C. NO . CR-02-2080)


Howard A. Pincus, Assistant Federal Public Defender, (Raymond P. M oore,
Federal Public Defender, with him on the briefs) Denver, Colorado, for the
Defendant-Appellant.

Terri J. Abernathy, Assistant United States Attorney, (David C. Iglesias, United
States Attorney, with her on the brief) Las Cruces, New M exico, for the Plaintiff-
Appellee.


Before HA RTZ, ANDERSO N, and M cCO NNELL, Circuit Judges.


M cCO NNELL, Circuit Judge.


      Hector M anuel Aguayo-Gonzalez was charged in the District of New

M exico with illegal reentry after conviction of an aggravated felony, in violation
of 8 U.S.C. § 1326(a) and (b)(2), and with making a false citizenship claim, in

violation of 18 U.S.C. § 911, both of which are felonies. He was also charged

with assaulting, resisting, or impeding a federal officer under 18 U.S.C. § 111.

      M r. Aguayo-Gonzalez went to trial on all three counts. At trial, the

defendant and his law yer conceded most of the facts necessary to prove the two

felony counts. During her opening statement, the defendant’s attorney said that

M r. Aguayo-Gonzalez was “not going to necessarily fight [the] allegations” that

he had been deported, and “will not fight [the] evidence” that he made a false

declaration of citizenship. R. Vol. IV, at 12. The defendant himself, on direct

examination, testified that he was a M exican national, had previously been

deported from the United States, and knew that he did not have legal permission

to enter the country. He also testified that he had misrepresented his status to

border officials by claiming that he was a U.S. citizen.

      The third count in M r. Aguayo-Gonzalez’s indictment can be either a

misdemeanor or a felony, depending on the seriousness of the conduct. 18 U.S.C.

§ 111. Section (a) of the provision, which is a misdemeanor, imposes up to one

year of imprisonment on anyone who “forcibly assaults, resists, opposes, impedes,

intimidates, or interferes” with an officer performing his official duties. Id.

Section (b) raises the crime to a felony, punishable by up to 20 years

imprisonment, if the defendant uses a deadly or dangerous w eapon or inflicts

bodily injury. Although the indictment did not specify whether M r. Aguayo-

                                          -2-
Gonzalez was being charged under section (a) or (b), both parties and the judge,

at trial, in the jury instructions, and at sentencing, treated the charge as a

misdemeanor. Both parties assume the charge to be a misdemeanor for purposes

of this appeal.

      The jury convicted M r. Aguayo-Gonzalez on all counts. The presentence

report grouped the two felonies together at offense level 24, and the misdemeanor

was assigned an offense level of 9. 1   W hen a defendant faces sentencing for

charges of greatly disparate severity, the lesser charges are ignored when

determining the Guidelines range: “D isregard any Group that is 9 or more levels

less serious than the Group with the highest offense level. Such Groups will not

increase the applicable offense level but may provide a reason for sentencing at

the higher end of the sentencing range for the applicable offense level.” U.S.

Sentencing Guidelines M anual § 3D1.4(c) (2003). The defendant’s misdemeanor

was fifteen levels lower than his felonies, so the court based its Guidelines

calculations entirely on the first tw o charges.

      Because M r. Aguayo Gonzalez had contested the misdemeanor charge, the

judge denied him a reduction under the Guidelines for acceptance of

responsibility, stating that although “the defendant did not contest that he was in


      1
       The sentencing at issue in this case was M r. Aguayo-Gonzalez’s second
for these charges. The first sentence was overturned due to an error in the
calculation of the Guidelines. United States v. Aguayo-Gonzalez, 139 Fed. App
937 (10th Cir. 2005) (unpublished opinion).

                                           -3-
the United States illegally[, h]e did contest and aggressively took issue with the

government’s contention that he assaulted, resisted, or impeded a federal officer.”

Aplt. App., Doc. 2, at 10. As applied, the Sentencing Guidelines range was 63-78

months; with two points off for acceptance of responsibility, it would have been

51-63 months. The sentencing court also considered M r. Aguayo-Gonzalez’s

sixteen prior convictions that did not result in criminal history points, as well as

his apparent substance abuse problems. Aplt. App., Doc. 2, at 12. The court

imposed a sentence of sixty-six months. 2



                                            II.

      On appeal, M r. Aguayo-Gonzalez challenges his sentence as unreasonably

disparate from the sentences of defendants similarly situated. In the wake of

United States v. Booker, 543 U.S. 220 (2005), a district court still must calculate

the G uidelines and apply applicable upward adjustments and downward

departures. Subsequently, the court may use its discretion to impose a sentence

either within the Guidelines range or outside of it, relying on the sentencing


      2
        The court also imposed a $100 special assessment for each of the three
counts. This appeal initially included a claim that the $100 fee for the
misdemeanor conviction was improper because the relevant statute authorizes
only a $25 fee for Class A misdemeanors. 18 U.S.C. § 3013(a)(1)(A)(iii). After
acknowledging the error in its briefs and at oral argument, the government moved
in district court to remit the $100 fee to the defendant. The district court granted
that motion, rendering the issue moot on appeal. D. N.M ., Case 02-cr-02080,
Docket, Doc. 82, 83.

                                          -4-
factors set out in 18 U .S.C . § 3553(a). In evaluating the resulting sentence, we

first determine whether the court calculated the correct Guidelines range; if so,

we examine the sentence for reasonableness, using a presumption of

reasonableness for w ithin-G uidelines sentences. United States v. Kristl, 437 F.3d

1050, 1055 (10th Cir. 2006).

      Because the defendant does not argue that the district court incorrectly

calculated his Guidelines range, we jump directly to the second Kristl inquiry and

address whether his sentence was unreasonable. 3    M r. Aguayo-Gonzalez claims

that his sentence violates the mandate in 18 U.S.C. § 3553(a) that the court “avoid

unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6).



      3
       It is not entirely clear that the Guidelines were in fact properly applied.
Our Court has not determined – and does not do so here – whether acceptance of
responsibility is an all-or-nothing proposition under the Guidelines. Precedent in
other circuits is fractured on whether a defendant must accept responsibility for
all charged crimes, or merely all crimes in a given Guidelines grouping, in order
to receive a reduction. Four courts of appeals have held that a defendant must
accept responsibility for all charged conduct in order to receive a reduction, but
none of those cases involved or considered a defendant who had pleaded guilty to
all charges within one Guidelines grouping and disputed others outside that
grouping. United States v. Thom as, 242 F.3d 1028, 1033-34 (11th Cir. 2001);
United States v. Chambers, 195 F.3d 274, 278-79 (6th Cir. 1999); United States v.
Ginn, 87 F.3d 367, 370-71 (9th Cir. 1996); United States v. Kleinebreil, 966 F.2d
945, 952-53 (5th Cir. 1992). The two courts of appeals to address explicitly the
question have held that the acceptance of responsibility reduction is proper when
a defendant pleads guilty to one set of grouped charges, even if he contests other
charges that are grouped separately. United States v. Wattree, 431 F.3d 618, 621-
23 (8th Cir. 2005); U nited States v. W illiams, 344 F.3d 365, 379-80 (3d Cir.
2003). Because the defendant conceded the issue, we do not address it here.

                                          -5-
      In order to determine whether the defendant has been subjected to an

unwarranted sentencing disparity, we must ascertain whether he is similarly

situated to a defendant who has received a reduction for acceptance of

responsibility. To do so, we briefly examine the nature and purpose of the

reduction. The Guidelines offer up to a three-point reduction in a defendant’s

offense level for admitting the truth of the charges against him: two for “clearly

demonstrat[ing] acceptance of responsibility for his offense,” U.S.S.G. §

3E1.1(a), and one for “timely notifying authorities of his intention to enter a plea

of guilty, thereby permitting the government to avoid preparing for trial.”

U.S.S.G. § 3E1.1(b). The Guideline Notes explain that section (a) “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 cmt. n. 2. There are,

however, some exceptional circumstances that allow a defendant to receive a

reduction after a jury verdict, as the Notes explain:

      In rare situations a defendant may clearly demonstrate an acceptance of
      responsibility for his criminal conduct even though he exercises his
      constitutional right to a trial. This may occur, for example, where a
      defendant goes to trial to assert and preserve issues that do not relate to
      factual guilt (e.g., to make a constitutional challenge to a statute or a
      challenge to the applicability of a statute to his conduct). In each such
      instance, however, a determination that a defendant has accepted
      responsibility will be based primarily upon pre-trial statements and
      conduct.

Id. (emphasis added).

                                          -6-
         W e have employed this exception sparingly. In United States v. Gauvin,

173 F.3d 798, 806 (10th Cir. 1999), we upheld a district court adjustment under §

3E1.1 where the defendant admitted to his criminal conduct in testimony at trial

but disputed whether he had the necessary mens rea. Key to the Gauvin result,

however, is the fact that the defendant admitted to all facts pertaining to the

crime, disputing only the “the legal element of intent.” Id. W e have held in

numerous other cases that any defendant who “attempted at trial to deny a key

factual element of the crime . . . forfeited his claim to an adjustment under §

3E.1.1.” United States v. Salazar-Samaniega, 361 F.3d 1271, 1281 (10th Cir.

2004).

         M r. Aguayo-Gonzalez’s conduct departs in several ways from the

acceptance-of-responsibility standard enunciated above, making his situation

distinguishable, for purposes of § 3553(a)(6), from that of defendants who receive

the reduction. First of all, M r. Aguayo-Gonzalez makes no claim that he accepted

responsibility before trial. He went to trial on all three counts, and the

government was forced to put forward witnesses to prove both felony counts. In

United States v. Eaton, 260 F.3d 1232 (10th Cir. 2001), we upheld the district

court’s refusal to apply an acceptance-of-responsibility reduction when the

defendant “testified truthfully at trial” to committing the elements of the crime

but offered no evidence of pre-trial statements or conduct indicating acceptance

of responsibility. Id. at 1237. M r. Aguayo-Gonzalez’s conduct on the stand is

                                          -7-
similarly not comprehensive enough, and did not occur early enough, to indicate

acceptance of responsibility.

       M oreover, even if we were to credit the defendant’s statements from the

stand, his argument hinges on the premise that those statements admitted all facts

necessary to convict him on the two felony counts. That is not precisely true. In

count 2 of the indictment, M r. Aguayo-Gonzalez was charged under both sections

(a) and (b) of 8 U.S.C. § 1326. He did admit to sufficient facts for section (a),

which sets a two-year fine for an alien who “has been . . . deported . . . and

thereafter enters, attempts to enter, or is at any time found in, the United States.”

§ 1326(a). Section (b), however, contains additional requirements and imposes

additional penalties. It provides that “any alien . . . whose removal was

subsequent to a conviction for commission of an aggravated felony . . . shall be . .

. imprisoned not more than 20 years.” § 1326(b)(2). At no time during the trial

did either M r. Aguayo-Gonzalez or his lawyer acknowledge that his deportation

followed an aggravated felony. It follows that he took no affirmative steps to

accept responsibility for the much more serious portion of the charges against

him. This distinguishes his case from Gauvin and from the example in the

Guidelines N otes, in w hich defendants conceded all facts and disputed only

m atters of law .

       Finally, even assuming arguendo that M r. Aguayo-Gonzalez did accept

responsibility for the first two counts, his contesting of the third count makes it

                                          -8-
reasonable to differentiate his sentence from that of a defendant who had accepted

responsibility on all counts. The Sentencing Guidelines require acceptance of

responsibility on multiple counts for good reasons: to spare the government the

expense of putting on a trial, and to force a defendant to accept responsibility,

without reservations, for his conduct. U.S.S.G. § 3E1.1 cmt. n. 2; Thom as, 242

F.3d at 1034 (“a defendant who is unwilling to accept responsibility for some of

the charges against him has not really ‘come clean’ and faced up to the full

measure of his criminal culpability”). By contesting the third count, M r. Aguayo-

Gonzalez negated any such benefits.

      M r. Aguayo-Gonzalez’s argument that he “looks far more like a person

who has admitted guilt on all counts than one who has denied guilt on any count”

is beside the point, Aplt. Br. at 24, as is the government’s contention that he is

more “similarly situated to someone who contested all the charges against him”

than to “someone who entered guilty pleas on all the charges.” Appellee Br. at

10-11. The defendant’s argument for a non-Guidelines sentence was addressed to

the discretion of the district court, which bears primary responsibility for

determining whether to vary from the advisory Guidelines, and we have no basis

for saying its judgment was unreasonable. The district court examined the proper

Guidelines sentence, took account of M r. Aguayo-Gonzalez’s history, noted his

cooperation at trial, and selected a sentence it deemed no harsher than necessary.




                                          -9-
                                       III.

      Because we find the defendant’s sentence to be reasonable, we AFFIRM

the decision of the district court. Appellant’s motion to supplement the record on

appeal is granted.




                                       -10-
