                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-2546
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
     v.                                * District Court for the District of
                                       * South Dakota.
Mark Cottier,                          *
                                       * [UNPUBLISHED]
            Defendant - Appellant.     *
                                  ___________

                             Submitted: December 14, 2009
                                Filed: December 18, 2009
                                 ___________

Before BYE, BEAM, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

       Mark Cottier pleaded guilty to assault with a dangerous weapon in violation of
18 U.S.C. §§ 113(a)(3) and 1153. In return for his plea of guilty, the government
entered into a plea agreement, agreeing "that based upon the information known to it
at this time, [Cottier] is entitled to a two-level decrease in his offense level" for
acceptance of responsibility.        The presentence investigation report (PSR)
recommended a two-level reduction for acceptance of responsibility but the district
court1 rejected the recommendation and imposed a 120-month statutory maximum

      1
        The Honorable Richard H. Battey, Senior United States District Judge for the
District of South Dakota.
sentence. On appeal, Cottier argues the government breached the plea agreement by
failing to support, and arguing against, the acceptance of responsibility reduction. We
affirm.

       At approximately 3:00 a.m. on September 27, 2007, Cottier, while intoxicated,
repeatedly struck Charlene Byrd in the head with a stereo speaker, inflicting serious
head injuries. Cottier denied striking Byrd and told police the assault was committed
by his girlfriend, Charmaine Wounded Head. Cottier maintained his innocence until
entering into a plea agreement with the government.

       Cottier pleaded guilty on April 14, 2009, and an amended plea agreement was
filed on the same date. The plea agreement stated the government agreed Cottier was
entitled to a two-level reduction for acceptance of responsibility under U.S.
Sentencing Guidelines § 3E1.1(a). The plea agreement further noted any sentencing
recommendation made by Cottier or the government was not binding on the district
court, and the government would recommend a sentence within the applicable
Guideline range as determined by the district court. The plea agreement reserved the
government's right to present evidence and argument as to the appropriate within-
Guideline sentence.

       At sentencing, the district court noted, among other adjustments, the PSR
recommended a two-level reduction for acceptance of responsibility but advised the
parties it was considering denying the reduction. Defense counsel objected to the
district court's contemplated denial of the reduction. The government offered no
objection and argued the facts supported a sentence at the upper end of the applicable
Guideline range. Thereafter, the government indicated it stood by its position with
respect to acceptance of responsibility as set forth in the plea agreement, but noted the
ultimate decision fell within the discretion of the court. The district court denied the
reduction and imposed a statutory maximum 120-month sentence. On appeal, Cottier
argues the government's failure to object to the district court's denial of the acceptance

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of responsibility reduction and its arguments in support of a sentence at the upper end
of the applicable Guideline range breached the plea agreement.

      "Issues concerning the interpretation and enforcement of a plea agreement are
reviewed de novo." United States v. Has No Horses, 261 F.3d 744, 750 (8th Cir.
2001) (quoting United States v. Austin, 255 F.3d 593, 596 (8th Cir. 2001)).

       "[A] defendant is not automatically entitled to a reduction for acceptance of
responsibility on the basis of having entered a guilty plea. Instead, the burden of
proof falls upon the defendant to demonstrate that he has accepted responsibility for
his actions." United States v. Goings, 200 F.3d 539, 544 (8th Cir. 2000) (internal
citations omitted). The plea agreement entered into between Cottier and the
government did not shift the burden of proof to the government. As relevant to this
appeal, the agreement only required the government to recommend a two-level
reduction for acceptance of responsibility, while preserving the government's right to
argue for a sentence at the upper end of the Guideline range as determined by the
district court. The government's failure to object to the factual recitation offered by
the district court in support of its contemplated denial of the adjustment did not breach
the agreement. Indeed, the government expressly indicated during sentencing it stood
by its position in the plea agreement that Cottier was entitled to the decrease. While
the government's attorney could have argued more forcefully on behalf of the two-
level reduction, we have previously held a "lack of enthusiasm does not breach the
agreement." Has No Horses, 261 F.3d at 750. Finally, we conclude the arguments
offered by the government in support of a sentence at the upper end of the applicable
Guideline range were not impermissible as contemplated by the plea agreement.

      The judgment of the district court is affirmed.
                     ______________________________




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