                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-2687
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                   Sheehan R. Grant

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                    for the Western District of Missouri - Joplin
                                  ____________

                            Submitted: February 10, 2017
                               Filed: May 26, 2017
                                  [Unpublished]
                                  ____________

Before SMITH,1 GRUENDER, and BENTON, Circuit Judges.
                           ____________

PER CURIAM.

      Sheehan Grant was charged with interstate travel with intent to engage in illicit
sexual acts, in violation of 18 U.S.C. § 2423(b). Two days before trial, Grant waived


      1
       The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
his right to a jury trial. On the morning of trial, Grant withdrew his not-guilty plea
and entered a plea of nolo contendere. Grant’s presentence investigation report
recommended that he not receive credit for acceptance of responsibility, noting that
Grant continued to deny that he committed the offense at his change-of-plea hearing.
At sentencing, the district court2 denied Grant credit for acceptance of responsibility,
recalling the events leading up to the entry of the nolo contendere plea. The court
then imposed a mid-Guidelines range sentence of 156 months’ imprisonment,
followed by 10 years’ supervised release. Grant argues that the district court erred in
declining to grant an offense-level reduction for acceptance of responsibility.3 For the
reasons explained below, we affirm.

        Grant claims that he was entitled to the reduction because he waived his right
to a jury, admitted that the government could adduce sufficient evidence to prove him
guilty, and changed his plea from not guilty to nolo contendere. But,


      2
      The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.
      3
       Grant also argues that his nolo contendere plea was not voluntary because the
plea was in his best interest only if he were afforded a reduction for acceptance of
responsibility, which he did not receive. However, this argument is not properly
before us because Grant did not move to withdraw his plea in the district court. See
United States v. Foy, 617 F.3d 1029, 1033–34 (8th Cir. 2010).

       Further, Grant argues that the district court violated Federal Rule of Criminal
Procedure 11 by failing to establish a factual basis for Grant’s nolo contendere plea
and failing to consider the “public interest in the administration of justice.” See Fed.
R. Crim. P. 11(a)(3). However, Rule 11’s factual-basis requirement does not apply
to pleas of nolo contendere. See Fed. R. Crim. P. 11(b)(3) (“Before entering judgment
on a guilty plea, the court must determine that there is a factual basis for the plea.”
(emphasis added)). And to the extent that the court failed to consider the public
interest in accepting Grant’s plea, such error was harmless because it did not affect
Grant’s substantial rights. See Fed. R. Crim. P. 52(a).

                                          -2-
“[d]eterminations as to acceptance of responsibility . . . are factual findings that we
review only for clear error.” United States v. Jones, 539 F.3d 895, 897 (8th Cir.
2008); see also United States v. Winters, 416 F.3d 856, 860 (8th Cir. 2005) (“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.”). “We do not substitute our
judgment for that of the district court because the district court is in a better position
to assess whether a defendant has accepted responsibility and to assess the credibility
of witnesses.” Jones, 539 F.3d at 897; see also United States v. Quintana, 340 F.3d
700, 702 (8th Cir. 2003) (“It is . . . well established that in sentencing matters a
district court’s assessment of witness credibility is quintessentially a judgment call
and virtually unassailable on appeal.” (ellipsis in original) (quotations omitted)).

       In declining to grant a reduction for acceptance of responsibility, the district
court heard argument from both parties, considered the circumstances and timing of
Grant’s change of plea, and stated:

             THE COURT: All right. Well, I want to do everything I can to
      encourage people who are guilty of these crimes to admit them so that
      victims don’t have to testify. In this case there was no actual victim so
      the benefit of him pleading is somewhat less to a victim. Am I allowed
      to give half credit? Is it two or nothing?

            [Prosecutor]: I believe it’s two or nothing, Your Honor. I think in
      imposing sentence you can consider his waiver of jury trial and things
      along those lines but I think as a legal matter it’s two or nothing.

             THE COURT: Well, I’m not inclined to do that anyway. I don’t
      think he’s entitled to—I remember the plea hearing and I also know that
      we were in the morning of trial. The Court is going to find—deny the
      acceptance of responsibility credit. I’m going to find the correct offense
      level is 151 to 188.


                                           -3-
      In other words, the district court determined that Grant’s last-minute plea
change was inconsistent with finding that he had accepted responsibility for his
offense. Upon review of the transcript from the change-of-plea hearing, we note that
Grant never expressly accepted responsibility for the offense and indicated that his
mother could testify to his innocence. Thus, we find no clear error in the district
court’s denial of the reduction for acceptance of responsibility.

      Accordingly, we affirm the judgment of the district court.
                     ______________________________




                                        -4-
