                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-2908
                                   ___________

United States of America,            *
                                     *
           Plaintiff-Appellee,       *
                                     *    Appeal from the United States
     v.                              *    District Court for the
                                     *    District of Minnesota.
Miguel Angel Arellano,               *
                                     *
           Defendant-Appellant.      *
                                ___________

                             Submitted: May 16, 2002
                                Filed: June 6, 2002
                                 ___________

Before LOKEN, HEANEY, and MURPHY, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

      Miguel Arellano pled guilty to possession with intent to distribute cocaine, 21
U.S.C. § 841(a)(1), (b)(1)(B), and the district court1 sentenced him to 97 months. On
his appeal Arellano argues that he should have received a sentence reduction for
acceptance of responsibility. We affirm.




      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
       After Arellano sold an ounce of cocaine to a police informant in December
2000, officers obtained a warrant to search his residence which was at the home of
a friend who was traveling in Mexico. The search uncovered more than four
kilograms of cocaine and seventy grams of cocaine base, more than $22,000 in cash,
a loaded handgun and ammunition, two scales, and drug packaging equipment.
Arellano was present during the search and assisted the officers with it. Following
his indictment, Arellano provided information regarding his offense and names of
others allegedly involved in criminal activities. While the information was regarded
to be truthful, it did not lead to the development of other cases, and the government
did not move for a downward departure on the basis of substantial assistance.

       Arellano pled guilty in March 2001. In the plea agreement the government
agreed to recommend a three level reduction for acceptance of responsibility. See
United States Sentencing Commission, Guidelines Manual, § 3E1.1 (Nov. 2000). It
also agreed not to request a two level sentencing enhancement for the firearm found
during the search of Arellano's residence, see § 2D1.1(b)(1), and not to oppose his
request for a two level reduction under the safety valve provision for first time
offenders. See § 5C1.2, § 2D1.1(b)(6).2 Arellano agreed not to contest forfeiture of
the currency seized at his residence.

       An incident which affected his sentencing occurred one month after his plea.
At the jail where he was being held, Arellano hit a correction officer and knocked him


      2
        A sentence lower than a mandatory statutory minimum is permitted if: (1) the
defendant's criminal history category is I; (2) the defendant did not possess a firearm
or use violence in connection with the offense; (3) the offense did not result in death
or serious bodily injury; (4) the defendant was not an organizer of others in the
offense and was not engaged in a continuing criminal enterprise; and (5) the
defendant provided the government with truthful and complete information about the
crime. USSG § 5C1.2, § 2D1.1(b)(6) (two level reduction in offense level). See also
18 U.S.C. § 3553(f)(1)-(5).

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over. He was subsequently charged with assaulting a correctional officer, and the
state prosecution has been continued until resolution of this case.

       Before sentencing Arellano signed a written statement acknowledging his guilt
which indicated he had acted as an agent for the owner of the drugs and was
responsible for selling them and collecting the proceeds. Arellano argued that he
should be granted a sentencing reduction for acceptance of responsibility because of
his acknowledgment of guilt and the cooperation he had provided. The court denied
a reduction, however, after finding that Arellano's conduct while incarcerated was
inconsistent with acceptance of responsibility. His base offense level was calculated
at 32 based on the amount of cocaine involved, see USSG § 2D1.1(c)(4), and the
court granted him a two level safety valve reduction under § 5C1.2. His adjusted
offense level of 30, combined with a criminal history category of I, resulted in a
guidelines range of 97 to 121 months. USSG Ch. 5, pt. A. The court sentenced him
at the low end of the range to 97 months.

       A sentencing court may give a defendant who "clearly demonstrates acceptance
of responsibility for his offense" and has "assisted authorities in the investigation or
prosecution of his own misconduct" a three level downward adjustment from his base
offense level. USSG § 3E1.1(a),(b). Arellano contends on appeal that he should have
been granted the reduction. He points out that he cooperated during the search,
provided truthful information, and pled guilty. He argues that his actions
demonstrated a clear acceptance of responsibility.

      A district court's factual determination on whether a defendant has
demonstrated acceptance of responsibility is entitled to great deference and should
be reversed only if it is so clearly erroneous as to be without foundation. United
States v. Ngo, 132 F.3d 1231, 1233 (8th Cir. 1997). See also USSG § 3E1.1,
comment (n.5) (determination of sentencing court entitled to great deference). A
defendant has the burden to show he is entitled to acceptance of responsibility. Ngo,

                                          -3-
132 F.3d at 1233. One factor in determining whether a defendant has clearly
demonstrated acceptance is whether he has withdrawn from "criminal conduct."
§ 3E1.1, comment (n.1(b)).

       Even unrelated criminal conduct may make an acceptance of responsibility
reduction inappropriate, Ngo, 132 F.3d at 1233 (driving while intoxicated), and a
defendant's behavior in jail while awaiting sentencing is a relevant consideration.
United States v. Atlas, 94 F.3d 447, 451 (8th Cir. 1996). The district court was
entitled to consider Arellano's physical assault on the correction officer in
determining whether he had clearly accepted responsibility, and we cannot say that
the district court erred in its finding.

      The judgment of the district court is affirmed.

      A true copy.

            ATTEST:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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