                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 6 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 01-2062
                                                   (D.C. No. CR-00-543-LH)
    JAVIER ENRIQUE                                        (D. N.M.)
    BARRIENTOS-SOLIS,

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, PORFILIO , Circuit Judge, and        BRORBY ,
Senior Circuit Judge.



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

unanimously that oral argument would not materially assist 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.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
      Defendant Javier Barrientos-Solis appeals his ninety-two month sentence,

imposed after a jury convicted him of violating 8 U.S.C. § 1326(a), (b)(2) (illegal

reentry into the United States after arrest and deportation, and after having been

convicted of an aggravated felony without reapplying for admission and without

the consent of the Attorney General).

      On appeal, Mr. Barrientos-Solis argues that he was entitled to a three-level

reduction from his base offense level for acceptance of responsibility, pursuant to

§ 3E1.1 of the United States Sentencing Guidelines. Under § 3E1.1(a), “[i]f the

defendant clearly demonstrates acceptance of responsibility for his offense,” the

district court shall “decrease the offense level by 2 levels.” Additionally, if the

defendant qualifies for a reduction under subsection (a), and the offense level

before that reduction is level sixteen or greater, “and the defendant . . . timely

provid[es] complete information to the government concerning his own

involvement in the offense,” the court shall “decrease [the offense level] by 1

additional level.” USSG § 3E1.1(b).

      Acceptance of responsibility involves “truthfully admitting the conduct

comprising the offense(s) of conviction.”     Id., cmt. n.1(a). Conviction by trial

“does not automatically preclude a defendant from consideration for such a

reduction.” Id. , cmt. n.2. “In rare situations a defendant may clearly demonstrate

an acceptance of responsibility for his criminal conduct even though he exercises


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his constitutional right to a trial:” for example, he may go “to trial to assert and

preserve issues that do not relate to factual guilt.”      Id. ; see also United States v.

Garcia , 182 F.3d 1165, 1172 (10th Cir. 1999).

       Here, Mr. Barrientos-Solis claims he was entitled to the full three-point

reduction because he had accepted responsibility in a pre-trial statement. Because

defendant did not seek the § 3E1.1 reduction and did not object to the district

court’s failure to grant it sua sponte, our review is for plain error.         United States

v. Jones , 80 F.3d 436, 438 (10th Cir. 1996). Under the plain error rule,

a defendant must show clear or obvious error affecting his substantial rights, and

seriously affecting the integrity of the judicial proceedings.           Id.

       According to the Presentence Report (PSR), Mr. Barrientos-Solis submitted

a statement to the probation office in which he admitted that he was not from the

United States and that he was in the country illegally. The probation officer

authoring the PSR considered this account “a complete statement accepting

responsibility.”   See R. Vol. II, at 4. On the other hand, Mr. Barrientos-Solis put

the government to its burden of proof by denying the essential factual elements of

his guilt and proceeding to trial. “Pleading not guilty and requiring the

government to prove guilt at trial demonstrate denial of responsibility, regardless

of how easily the government can prove guilt.”          United States v. Portillo-

Valenzuela , 20 F.3d 393, 394-95 (10th Cir. 1994).


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        At the very least, Mr. Barrientos-Solis’ inconsistent pre-trial and trial

conduct required factual findings on the issue of whether he clearly accepted

responsibility for his offense.   See United States v. Gauvin , 173 F.3d 798, 805

(10th Cir. 1999) (stating that the “determination of acceptance of responsibility is

a question of fact”). Defendant’s failure to raise the issue earlier, however,

deprived the district court of the opportunity to make the essential factual

findings. Under these circumstances, we conclude that the district court did not

commit plain error in sentencing Mr. Barrientos-Solis.

       The judgment of the district court is AFFIRMED.


                                                      Entered for the Court



                                                      Wade Brorby
                                                      Senior Circuit Judge




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