                                                                                   F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                   NOV 13 2000
                                     TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                        Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.
                                                                No. 99-2105
 JUAN CARLOS CHAVEZ-LOPEZ, also                           (D.C. No. CR-96-735-JP)
 known as Simon Redekop-Gutierrez,                           (D. New Mexico)
 George Redekop, Jorge Solano, Jorge
 Solano-Ramos, Miguel Santisteven-
 Aragon, and Simon Gutierrez-Gonzalez,

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before BALDOCK, HOLLOWAY and EBEL, Circuit Judges.



       Juan Carlos Chavez-Lopez brings this appeal from the sentence imposed by the

district court after his conviction for illegal re-entry into the United States by a deported

alien after conviction of an aggravated felony, a violation of 8 U.S.C. § 1326. Mr.

Chavez waived his right to trial by jury and was found guilty after a bench trial. On

appeal he raises two sentencing issues.


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
                                               I

       Mr. Chavez first contends that the district court erred in refusing to decrease his

offense level for acceptance of responsibility. The burden is on the defendant to establish

his entitlement to a reduction of offense level for acceptance of responsibility, and we

review for clear error the district court’s determination that he failed to meet that burden.

United States v. Bindley, 157 F.3d 1235, 1240-41 (10th Cir. 1998), cert. denied, 525 U.S.

1167 (1999).

       Chavez contends that he went to trial only to challenge the fundamental fairness of

his earlier deportation. Relying on United States v. Garcia, 182 F.3d 1165, 1171-75 (10th

Cir.), cert. denied, 120 S.Ct. 448 (1999), and United States v. Gauvin, 173 F.3d 798, 805-

06 (10th Cir.), cert. denied, 120 S.Ct. 250 (1999), Chavez argues that he should not have

been disentitled from the benefit of the acceptance of responsibility determination solely

because he went to trial to preserve a legal defense. The record shows, however, that Mr.

Chavez did not go to trial solely to preserve his contention that the previous deportation

proceeding was lacking in fundamental fairness.

       To the contrary, as Mr. Chavez’s appellate counsel acknowledges, the record

reveals that his trial counsel expressly stated that no defense was being waived. At the

beginning of trial, the district judge asked the parties to state the issues that would be

presented. The attorney for the United States said that the “main issue in this case, I

imagine, will be the identity of the Defendant.” Government counsel went on to explain


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that Mr. Chavez had been previously convicted under another name, Michael A.

Santisteven, and then had been deported under the name Miguel Santisteven-Aragon. She

said that the prosecution would present fingerprint analysis evidence to show that Chavez

was the person who had been convicted of cocaine distribution in Kansas in 1986,

ordered deported in 1988, and actually deported in 1991.

       Trial counsel for Chavez (who does not represent him on appeal) then said that the

defense was not conceding any issues. More specifically when Mr. Bustamante, counsel

for Chavez, was asked if he had anything to add to the prosecuting attorney’s statement of

the issues to be resolved, this exchange occurred:

              Mr. Bustamante: No, Judge, other than identity is an issue, at this
       point we are not conceding any issues, Judge, and would ask the Court to
       consider throughout the proceeding whether if the government, in fact,
       proves this person is the person who was deported in 1991 –

             The Court: That is basically the defense, that he is not the same
       person.

                Mr. Bustamante: Well, it is a defense, but also whether that hearing
       is fair in the context of this case, Judge.

III R. 4. The trial proceeded as the attorneys had anticipated, with the government using

fingerprint evidence to establish that the defendant was the same person who had been

convicted in Kansas in 1986 and subsequently ordered deported.

       The reduction in offense level for acceptance of responsibility “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 . . . .” U.S. Sentencing Guidelines Manual § 3E1.1,

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comment., n.2. The Guidelines manual states:

       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.).

Id.

       This is not such a case. Mr. Chavez did not proceed to trial for the purpose of

establishing a potential legal defense, but put the government to the burden of

establishing the necessary factual predicate for the charge. Accordingly, we find no error

in the district court’s denial of the requested downward departure for acceptance of

responsibility. See United States v. Day, 223 F.3d 1225, 1230-31 (10th Cir. 2000)

(affirming denial of acceptance of responsibility adjustment in deference to the district

court’s determination).

                                              II

       Chavez’s second contention is that the district judge erred in increasing his offense

level by sixteen under USSG § 2L1.2. Under this section of the Guidelines, unlawful

entry into the United States is assigned a base offense level of eight, which is increased to

twelve if the defendant has been previously deported after a felony conviction (other than

a violation of the immigration laws), and is increased to twenty-four if the defendant

previously was deported after a conviction for an aggravated felony. Applying the

definition of “aggravated felony” found in the Immigration Act at 8 U.S.C. § 1101(43),

                                             -4-
application note 7 to section 2L1.2 of the Guidelines states that the term includes illicit

drug trafficking.

       Chavez’s argument is based on the fact that Congress amended the statutory

definition of aggravated felony to include drug trafficking after his conviction in Kansas

in 1986. He suggests that Congress may have intended for the revised definition to apply

only to drug trafficking convictions occurring after the amendment. Chavez’s counsel

acknowledges that we decided this issue adversely to him in United States v. Aranda-

Hernandez, 95 F.3d 977, 981-82 (10th Cir. 1996). We consequently reject this argument

and move to Chavez’s constitutional attack on this same offense level adjustment.

                                             III

        Chavez argues that the sixteen level increase in his offense level violated the

Constitution’s ex post facto provision, a contention which, like the previous one, is based

on the fact that his previous conviction in state court in Kansas for distribution of

cocaine preceded enactment, in the Anti-Drug Abuse Act of 1988, of the amended

definition of an aggravated felony which is incorporated in USSG § 2L1.2(b). Once

again, Chavez’s counsel acknowledges that this argument has already been rejected by

this court. See United States v. Cabrera-Sosa, 81 F.3d 998, 1001-02 (10th Cir. 1996).

Accordingly, this argument is likewise rejected.




                                              -5-
                            Conclusion

The sentence is AFFIRMED.



                              ENTERED FOR THE COURT



                              William J. Holloway, Jr.
                              Circuit Judge




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