                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 26, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 12-1462
 v.                                           (D.Ct. No. 1:12-CR-00149-RBJ-1)
                                                          (D. Colo.)
 JOSE LUJAN-LOPEZ,

          Defendant-Appellant.
                       ______________________________

                                ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



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

unanimously that oral argument would not materially assist in 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.

      A jury convicted Appellant Jose Lujan-Lopez of one count of illegal

reentry of a deported alien subsequent to a felony conviction in violation of 8


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
U.S.C. § 1326(a) and (b)(1). He now appeals his seventy-seven-month downward

variant sentence, claiming it is procedurally unreasonable because the district

court failed to apply United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”) § 3E1.1 for a two-level reduction for acceptance of responsibility.

He also contends his sentence is substantively unreasonable because the district

court gave undue weight to his criminal history, while failing to give meaningful

weight to his personal history and characteristics. We exercise jurisdiction

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm Mr. Lujan-

Lopez’s sentence.

                       I. Factual and Procedural Background

      After Mr. Lujan-Lopez pled not guilty to illegal reentry, a pre-trial

conference was held at which his counsel advised Mr. Lujan-Lopez might proceed

to trial because he was upset with his estimated Guidelines sentence and was

considering hiring private counsel, to which the district court indicated it would

allow a continuance in the event counsel was hired. The district court also

thoroughly explained the Guidelines to Mr. Lujan-Lopez, including the fact they

are advisory and not mandatory or binding, and that it would determine a fair and

appropriate sentence by considering not only the Guidelines but the other

sentencing factors involved. No new counsel or continuance request followed; in

preparation for trial, the government submitted trial briefs, exhibit and witness

lists, jury instructions, and voir dire questions. At trial, prior to jury selection,

                                          -2-
Mr. Lujan-Lopez admitted he was guilty and did not want to go to trial but

wanted another attorney to get a “better deal.” His counsel explained Mr. Lujan-

Lopez’s only objection to her representation was her calculation of the applicable

Guidelines range. The district court denied his request for alternative counsel and

again explained how the Guidelines operated. Given Mr. Lujan-Lopez’s decision

not to plead guilty, the trial then commenced with the government presenting

multiple witnesses and various exhibits to prove the crime charged. The next day,

Mr. Lujan-Lopez took the stand in his own defense and, on cross examination,

admitted guilt to the charge against him and explained, as his reason for going to

trial, that he wanted to obtain “compassion from the jury.” A jury verdict of

guilty ensued.

      Following his conviction, a probation officer prepared a presentence report,

and, in calculating his sentence, determined a two-level reduction under U.S.S.G.

§ 3E1.1 for acceptance of responsibility did not apply because Mr. Lujan-Lopez

put the government to its burden of proof at trial and did not appear to meet an

exception for applying such a reduction. Mr. Lujan-Lopez’s total offense level of

24, together with his criminal history category of V, resulted in a Guidelines

range of ninety-two to 115 months imprisonment.

      Prior to and at the sentencing hearing, Mr. Lujan-Lopez objected to the

presentence report, claiming he was entitled to a two-point reduction because he

admitted his guilt at the trial, which should result in a Guidelines range of

                                          -3-
seventy-seven to ninety-six months. His counsel also sought a lower sentence,

arguing a seventy-seven-month sentence was extremely onerous for the

nonviolent crime of illegal reentry and pointed out Mr. Lujan-Lopez returned

illegally for the admirable purpose of caring for his child. During his allocution,

Mr. Lujan-Lopez expressed remorse for his illegal reentry and explained he “only

returned because of [his] son.” Because Mr. Lujan-Lopez chose to proceed to

trial, the government opposed a § 3E1.1 reduction for acceptance of

responsibility.

      The district court expressed its concerns about § 3E1.1 placing a penalty on

defendants for exercising their right to go to trial and recognized that by not

denying his guilt, Mr. Lujan-Lopez had accepted responsibility for his crime. It

also considered the sentencing factors in 18 U.S.C. § 3553(a), including the

nature of the crime, Mr. Lujan-Lopez’s history and characteristics, including his

“very substantial criminal history,” and the need to promote respect for the law,

deter future crimes, and protect the public. It also noted the recommended

Guidelines sentence “for this type of case” was “extraordinary” but also noted

Mr. Lujan-Lopez’s extensive criminal history supported a “higher-level

sentence.” In addressing Mr. Lujan-Lopez’s request for a sentence below

seventy-seven months, it recognized a seventy-seven-month sentence would be at

the low end of the Guidelines range if it had applied the two-point reduction for

acceptance of responsibility. It then imposed a sentence of seventy-seven months

                                         -4-
imprisonment, clarifying it was imposing a downward variant sentence and

stating, “I am satisfied that ninety-two months is too much. I am satisfied that a

penalty for going to trial is unfair.”

                                     II. Discussion

      Mr. Lujan-Lopez now appeals his sentence, renewing his claim his sentence

is: (1) procedurally unreasonable because the district court failed to apply

U.S.S.G. § 3E1.1 for a two-level reduction for his acceptance of responsibility;

and (2) substantively unreasonable because it placed too much weight on his

criminal record while failing to give “any” or “meaningful” weight to his personal

history and characteristics, including his illegal reentry for the purpose of caring

for his son. In arguing for the two-level reduction, Mr. Lujan-Lopez contends the

district court made a mistake of law by assuming § 3E1.1 is unavailable to a

defendant who goes to trial and that his admission of guilt at trial is sufficient to

apply a § 3E1.1 reduction. He further submits that in deciding to go to trial his

“concern was always about the length of his sentence,” as well as his desire to

recount his experience and ask for leniency, and that the trial “served as an

essential vehicle for him to accept responsibility.” The government opposes the

appeal.

      We review a sentence for reasonableness, giving deference to the district

court under an abuse of discretion standard. See United States v. Smart, 518 F.3d

800, 802-03, 805 (10th Cir. 2008). Thus, we review “‘all sentences–whether

                                          -5-
inside, just outside, or significantly outside the Guidelines range–under a

deferential abuse-of-discretion standard’” in which we afford substantial

deference to the district courts. Id. at 806 (quoting Gall v. United States, 552

U.S. 38, 41 (2007)). “Our appellate review for reasonableness includes both a

procedural component ... as well as a substantive component, which relates to the

length of the resulting sentence.” Id. at 803. “Procedural reasonableness

addresses whether the district court incorrectly calculated ... the Guidelines

sentence, treated the Guidelines as mandatory, failed to consider the § 3553(a)

factors, relied on clearly erroneous facts, or failed to adequately explain the

sentence.” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008).

      In determining whether the district court committed procedural error in

calculating Mr. Lujan-Lopez’s sentence or treated the Guidelines as mandatory,

we look to § 3E1.1, on which he relies. It advises sentencing courts to “decrease

the offense level by two levels” if “the defendant clearly demonstrates acceptance

of responsibility for his offense.” U.S.S.G. § 3E1.1(a). Application Note 2 to

§ 3E1.1 also explains:

      This 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. Conviction by trial, however, does not
      automatically preclude a defendant from consideration for such a
      reduction. 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

                                          -6-
      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 upon pre-trial
      statements and conduct.

U.S.S.G. § 3E1.1. cmt. n.2.

      “Generally, we review a district court’s decision to refuse application of the

two-level reduction for acceptance of responsibility under the deferential clearly

erroneous standard.” United States v. McGehee, 672 F.3d 860, 877 (10th Cir.

2012). “We review the district court’s interpretation and application of the

sentencing guidelines de novo and review the court’s factual findings for clear

error.” United States v. McAlpine, 32 F.3d 484, 487-88 (10th Cir. 1994) (citation

omitted). The defendant has the burden of establishing his entitlement to a

reduction by a preponderance of the evidence. See United States v. Collins, 511

F.3d 1276, 1279 (10th Cir. 2008).

      “[A] defendant’s decision to exercise his constitutional right to trial will

commonly render him ineligible for a § 3E1.1 reduction.” United States v. Tom,

494 F.3d 1277, 1280 (10th Cir 2007). As the commentary to § 3E1.1 states,

“[t]he acceptance-of-responsibility 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[] [and] is convicted.’” McGehee, 672 F.3d at

877 (quoting § 3E1.1 cmt. n.2) (emphasis omitted). In interpreting § 3E1.1 and

its commentary, we have also held “an admission of guilt at trial does not suffice

                                          -7-
to mandate an award of the acceptance-of-responsibility reduction.” Id. at 878

n.6 (internal quotation marks omitted). Thus, while a defendant’s admission of

guilt at trial can earn a reduction, a district court is not required to grant it. See

Collins, 511 F.3d at 1280. Instead, “whether a defendant is entitled to a reduction

for acceptance of responsibility is a determination that involves weighing a

number of different factors and is not solely dependant on a defendant’s

admission of guilt.” Id. at 1281.

      In this case, the parties based their arguments on § 3E1.1 and its

commentary, and the district court, in explaining the Guidelines to Mr. Lujan-

Lopez, pointed out they were advisory and not mandatory or binding on the court.

As a result, the record demonstrates the district court was aware of its discretion

to impose a two-level reduction for acceptance of responsibility. Furthermore, its

decision to deny the reduction was not clearly erroneous. This is because Mr.

Lujan-Lopez made a decision to go to trial despite his admission of guilt prior

thereto and, in so doing, held the government to its ultimate burden of proof of

showing he committed the crime charged, resulting in its filing of multiple

pretrial pleadings and participating in a two-day trial with a number of witnesses

and exhibits. Despite Mr. Lujan-Lopez’s contrary contentions, his mere

admission of guilt on cross-examination does not mandate a reduction for

acceptance of responsibility, see McGehee, 672 F.3d at 878 n.6, and, instead, the

decision was left to the district court’s discretion.

                                           -8-
      As to the exception in Application Note 2 to § 3E1.1, nothing in the record

shows Mr. Lujan-Lopez went to trial for the purpose of asserting and preserving

issues unrelated to factual guilt, such as a challenge to the constitutionality of a

statute or its applicability. Instead, he submits that in deciding to go to trial his

“concern was always about the length of his sentence” as well as his desire to

recount his experience and ask for leniency. These are not grounds warranting

application of the § 3E1.1 commentary exception or consideration at trial but are

grounds generally raised during a sentencing hearing. In addition, his heedless

contention the trial merely “served as an essential vehicle for him to accept

responsibility” demonstrates an abuse of our judicial system, especially given his

early admission of guilt and decision to nevertheless go to trial, causing the

government, court, and jurors to expend valuable time and/or resources. In sum,

Mr. Lujan-Lopez has not shown his sentence is procedurally unreasonable.

      With respect to Mr. Lujan-Lopez’s argument the district court gave undue

weight to one sentencing factor over another, such an argument challenges the

substantive reasonableness of a sentence. See Smart, 518 F.3d at 808. However,

“[w]e may not examine the weight a district court assigns to various § 3553(a)

factors, and its ultimate assessment of the balance between them,” but must “give

due deference to the district court’s decision that the § 3553(a) factors, on a

whole, justify the extent of the variance.” Id. (internal quotation marks omitted).

We do not require the § 3553(a) factors “reach some specific level of evidentiary

                                           -9-
weight,” and “although a district court must provide reasoning sufficient to

support the chosen variance, it need not necessarily provide ‘extraordinary’ facts

to justify any statutorily permissible sentencing variance.” Id. at 807.

      Here, the district court outlined the factors it considered in sentencing Mr.

Lujan-Lopez, including the nature of the crime, Mr. Lujan-Lopez’s history and

characteristics, as well as the need to promote respect for the law, deter future

crimes, and protect the public. In so doing, it listened to Mr. Lujan-Lopez’s

repeated arguments on his history and characteristics, including that he illegally

entered this country to care for his son, and we are confident it considered those

arguments during sentencing. 1 In providing its reasoning for imposing a below-

Guidelines sentence, it stated that while Mr. Lujan-Lopez had a very substantial

criminal history warranting a higher sentence, it also did not believe he should be

penalized for going to trial, given his admission of guilt, and also stated that the

lengthy Guidelines-range sentence was “extraordinary” in his particular case. Its

rationale, while concise, is sufficiently compelling to support the degree of the


      1
          “The sentencing court ... is not required to consider individually each
factor listed in § 3553(a), nor is it required to recite any magic words to show us
that it fulfilled its responsibility to be mindful of the factors that Congress has
instructed it to consider before issuing a sentence.” United States v. Cordova,
461 F.3d 1184, 1189 (10th Cir. 2006) (internal quotation marks omitted). Instead,
the district court must “state in open court the reasons for its imposition of a
particular sentence,” 18 U.S.C. § 3553(c), and satisfy us, as it has here, that it
“has considered the parties’ arguments and has a reasoned basis for exercising
[its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338,
356 (2007).

                                         -10-
variance given, and it has satisfied us it considered the parties’ arguments and the

§ 3553(a) sentencing factors and had a reasoned basis for the variant sentence

given. Mr. Lujan-Lopez has not otherwise demonstrated his below-Guidelines-

range sentence is substantively unreasonable for the purpose of warranting

reversal on appeal.

                                  III. Conclusion

      Accordingly, we AFFIRM Mr. Lujan-Lopez’s seventy-seven-month term

of imprisonment.

                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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