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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1831 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                           JESUS BELLO, <br> <br>                      Defendant, Appellant. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Daniel R. Dominguez, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>            Selya, Boudin, and Lipez, Circuit Judges. <br>                                 <br>                                 <br>                                 <br>                                 <br>     Edgardo Rodrguez-Quilichini, Assistant Federal Public <br>Defender, with whom Joseph C. Laws, Jr., Federal Public Defender, <br>was on brief for appellant. <br>     Desire Laborde-Sanfiorenzo, Assistant United States Attorney, <br>with whom Guillermo Gil, United States Attorney, Jorge E. Vega- <br>Pacheco and Camille Vlez-Riv, Assistant United States Attorneys, <br>were on brief for appellee. <br> <br> <br> <br> <br> <br> <br>October 19, 1999 <br> <br> <br> <br>                                 <br>                                 <br>  LIPEZ, Circuit Judge.  Jess Bello appeals his conviction <br>and sentence for assaulting a fellow prisoner in the Metropolitan <br>Detention Center in Guaynabo, Puerto Rico ("MDC-Guaynabo") in <br>violation of 18 U.S.C.  113(a)(6).  Bello claims that the court <br>erred in taking judicial notice of the jurisdictional element of <br>the offense, namely, that MDC-Guaynabo was within the territorial <br>jurisdiction of the United States.  He also claims that the court <br>erred in refusing to instruct the jury on his defenses of self- <br>defense and duress, and in telling the jurors outside of the <br>presence of counsel, in response to a jury inquiry, that self- <br>defense was not applicable in this case.  In challenging his <br>sentence, he claims that the court mistakenly believed that it <br>lacked the legal authority to grant a downward departure on grounds <br>of coercion or duress, and that the court erred in refusing to <br>grant a reduction in offense level for acceptance of <br>responsibility.  We affirm. <br>                               I. <br>Factual background <br>  At the time of the events in question, Bello was a <br>prisoner confined at MDC-Guaynabo where he worked as a food service <br>orderly, serving food to other prisoners.  In this capacity, he was <br>responsible for ensuring that food was distributed to all inmates. <br>The victim of Bello's assault, Domingo Santana-Rosa, was also a <br>prisoner in MDC-Guaynabo.  Bello testified that Santana frequently <br>sneaked into the food service line and requested seconds even when <br>all other prisoners had not yet eaten.  According to Bello, at <br>around 5:00 PM on July 23, 1996, he refused to serve Santana a <br>second helping at dinner because five other inmates had yet to eat.  <br>Santana then told Bello that he and another inmate were "going to <br>crack open [Bello's] head."  After making the threat, Santana sat <br>down with several other inmates, including one "Porra."  Porra <br>later advised Bello that Santana planned to attack him while Bello <br>was working out in the recreational yard of the prison.  Bello <br>testified that he did not report the threat to prison authorities <br>because he feared the repercussions of being labeled a "snitch" by <br>his peers. <br>  On July 25, 1996, at around 11:30 AM, Santana was playing <br>dominoes with other inmates in the recreational yard.  Bello <br>noticed Santana's presence, and he became alarmed when he further <br>noticed that the table for playing dominoes, which was ordinarily <br>in the prison's game room, had been moved into the yard where it <br>now stood only a few feet away from where Bello intended to <br>exercise.  Bello grabbed a push broom from the corner of the yard <br>and hit the wall of the yard with its handle, stating that it was <br>a good stick for playing baseball.  At that point Santana first <br>noticed Bello's presence in the yard, but he continued playing <br>dominoes.  Bello removed the handle from the push broom and kept <br>the head.  He walked towards Santana and, once behind him, Bello <br>hit him in the back of the head with the push broom head.  Santana <br>collapsed, unconscious, and was taken to the hospital where he was <br>operated on to relieve an epidural hematoma (a blood clot under the <br>skull).  Santana survived and regained consciousness six days <br>later.  The entire incident was captured on videotape. <br>  Bello was indicted on one count of assault within the <br>jurisdiction of the United States (as defined in 18 U.S.C.  7(3)), <br>in violation of 18 U.S.C.  113(a)(6).  Pursuant to Fed. R. Evid. <br>201 ("Rule 201"), the government filed a pretrial motion requesting <br>that the court take judicial notice that MDC-Guaynabo is located <br>within Fort Buchanan, a military base on lands "reserved or <br>acquired for the use of the United States, and under the exclusive <br>or concurrent jurisdiction thereof," and thus is within the <br>"special maritime or territorial jurisdiction of the United <br>States."  The pretrial motion was accompanied by documentation <br>tending to prove the requisite elements.  The court deferred making <br>a ruling on the motion until trial.  <br>  At trial, the government presented before the jury the <br>testimony of Alma Lpez, the legal advisor to the warden of MDC- <br>Guaynabo, who stated that the land on which the prison was located <br>was owned by the federal Bureau of Prisons and was formerly part of <br>Fort Buchanan, but was transferred to the Bureau by the Department <br>of Defense.  After cross-examining Lpez, defense counsel objected <br>to the court taking judicial notice of the fact that MDC Guaynabo <br>is under the exclusive jurisdiction of the United States.  Because <br>Lpez was not in a position to authenticate the documentation <br>submitted with the pretrial motion, the documents were not admitted <br>into evidence.  However, the court examined the documents outside <br>the presence of the jury and concluded that it could take judicial <br>notice (based on both the testimony in evidence and the documents) <br>that the MDC-Guaynabo facility was within the jurisdiction of the <br>United States.  The court announced to the jury that it was taking <br>judicial notice of this jurisdictional fact, but informed them that <br>they were "not required to accept as conclusive any fact that the <br>Court has judicially noticed."  The jury was similarly instructed <br>before it retired to deliberate.   <br>  The court denied Bello's request to instruct the jury on <br>his defenses of duress and self-defense, ruling that there were no <br>facts which justified such instructions.  During deliberations, the <br>jury requested clarification on the meaning of self-defense.  The <br>court responded by informing the jurors that self-defense was not <br>applicable to this case.  The jury found Bello guilty of assault.  <br>  The court subsequently denied an oral motion by Bello to <br>set aside the verdict on the ground that there was insufficient <br>proof of the jurisdictional element of which the court took <br>judicial notice.  Bello then filed a motion for a new trial, <br>arguing that the court erred in failing to instruct on self- <br>defense. The court denied the motion. <br>  Bello was subsequently sentenced to a term of <br>imprisonment of 120 months, 60 months of which was to be served <br>concurrently with the remainder of a previous federal criminal <br>sentence.  A supervised release term of 3 years and a special <br>monetary assessment of $100 were also imposed.  This appeal ensued. <br>                              II. <br>Judicial notice <br>  Bello argues that the court improperly took judicial <br>notice that the assault occurred "within the special maritime and <br>territorial jurisdiction of the United States."  In so doing, the <br>Court took judicial notice of an element of the offense for which <br>Bello was convicted.  That fact lends particular significance to <br>the judicial notice issue.  <br>  Since the government petitioned, and the trial court <br>ruled, pursuant to Rule 201, we address the conformity of the <br>court's judicial notice determination with that rule.  Rule 201 <br>provides in relevant part: <br>    (a) Scope of rule. This rule governs only <br>  judicial notice of adjudicative facts. <br>    (b) Kinds of facts. A judicially noticed fact <br>  must be one not subject to reasonable dispute <br>  in that it is either (1) generally known <br>  within the territorial jurisdiction of the <br>  trial court or (2) capable of accurate and <br>  ready determination by resort to sources whose <br>  accuracy cannot reasonably be questioned. <br>  . . . . <br>    (g) Instructing jury. In a civil action or <br>  proceeding, the court shall instruct the jury <br>  to accept as conclusive any fact judicially <br>  noticed. In a criminal case, the court shall <br>  instruct the jury that it may, but is not <br>  required to, accept as conclusive any fact <br>  judicially noticed. <br> <br>Fed. R. Evid. 201.  By its terms, Rule 201 applies only to <br>adjudicative facts, and the parties and the court assumed that the <br>jurisdictional element at issue here involved an adjudicative <br>rather than a legislative fact.  They assumed correctly. Whether a <br>fact is adjudicative or legislative depends not on the nature of <br>the fact   e.g., who owns the land   but rather on the use made of <br>it (i.e., whether it is a fact germane to what happened in the case <br>or a fact useful in formulating common law policy or interpreting <br>a statute) and the same fact can play either role depending on <br>context.  See Fed.R.Evid. 201, Advisory Committee's note <br>("Adjudicative facts are simply the facts of the particular case.  <br>Legislative facts, on the other hand, are those which have <br>relevance to legal reasoning and the lawmaking process . . . ."). <br>Where the prison sits is an element of the offense and <br>unquestionably an adjudicative fact, and we review the trial <br>court's decision to take judicial notice under Rule 201 for abuse <br>of discretion.  See United States v. Chapel, 41 F.3d 1338, 1342 <br>(9th Cir. 1994); see also Taylor v. Charter Medical Corp., 162 F.3d <br>827, 829 (5th Cir. 1998) (applying abuse of discretion standard to <br>refusal to take judicial notice). <br> <br>  MDC-Guaynabo's location within the jurisdiction of the <br>United States is the "kind of fact" judicially recognizable under <br>Rule 201(b).  To qualify for judicial notice, a fact "must be one <br>not subject to dispute in that it is either (1) generally known <br>within the territorial jurisdiction of the trial court or (2) <br>capable of accurate and ready determination by resort to sources <br>whose accuracy cannot reasonably be questioned."  The Advisory <br>Committee's note to Rule 201 explains: <br>    The usual method of establishing adjudicative <br>  facts is through the introduction of evidence, <br>  ordinarily consisting of testimony of the <br>  witnesses.  If particular facts are outside <br>  the area of reasonable controversy, this <br>  process is dispensed with as unnecessary.  A <br>  high degree of indisputability is an essential <br>  prerequisite. <br> <br>Rule 201, Advisory Committee's note (emphasis provided).    <br>  The trial court based judicial notice on both prongs of <br>Rule 201(b), finding that MDC-Guaynabo's presence within the <br>jurisdiction of the United States is of such common knowledge and <br>can be so accurately and readily determined that it cannot <br>reasonably be disputed.  By "generally known" Rule 201(b)(1) "must <br>refer to facts which exist in the unaided memory of the populace; <br>if the fact is one that a reasonable person would not know from <br>memory but would know where to find, it falls within subdivision <br>(2)," not (1).  21 Wright & Graham, Federal Practice and Procedure <br> 5105, at 407 (1977).  Although the label "federal penitentiary" <br>might suggest to the average person that MDC-Guaynabo is under the <br>jurisdiction of the United States, it is unlikely that the <br>"reasonable person" has any familiarity with MDC-Guaynabo at all, <br>let alone its jurisdictional status.  Hence, Rule 201(b)(1) cannot <br>supply a basis for judicially noticing the jurisdictional fact in <br>this case.  <br>  However, judicial notice was proper pursuant to Rule <br>201(b)(2), based on "sources whose accuracy cannot reasonably be <br>questioned."  Indeed, "[g]eography has long been peculiarly <br>susceptible to judicial notice for the obvious reason that <br>geographic locations are facts which are not generally <br>controversial and thus it is within the general definition <br>contained in Fed.R.Evid. 201(b) . . . ."  United States v. Piggie, <br>622 F.2d 468, 488 (10th Cir. 1980); see also United States v. <br>Blunt, 558 F.2d 1245, 1247 (6th Cir. 1977). Moreover, "official <br>government maps have long been held proper subjects of judicial <br>notice."  Government of Canal Zone v. Burjan, 596 F.2d 690, 694 <br>(5th Cir. 1979).  The government submitted to the court official <br>government maps, letters from Army officials, and various <br>legislative acts of Puerto Rico, all tending to show that MDC- <br>Guaynabo was within the jurisdiction of the United States.  <br>Although the defense cross-examined Lpez, the legal advisor to the <br>warden of MDC-Guaynabo, suggesting some "dispute" over Lpez's <br>testimony, it is clear from the record that the trial court based <br>its decision to take judicial notice largely on the maps and other <br>documents submitted by the government whose accuracy was not <br>questioned by the defense.  To be sure, the trial court's decision <br>to judicially recognize a fact upon which testimony had already <br>been presented and subjected to cross-examination before the jury <br>was unusual.  Nonetheless, the existence of independent and <br>undisputed documentary evidence in the form of government maps, <br>official letters, and public laws provided a sufficient basis for <br>judicial notice under Rule 201(b)(2), irrespective of Lpez's <br>testimony.   <br>  Concluding that the trial court properly exercised its <br>discretion in taking judicial notice of the jurisdictional fact, we <br>must decide next whether the trial court correctly adhered to Rule <br>201's procedures for instructing the jury.  Rule 201(g) provides <br>that: "In a civil action or proceeding, the court shall instruct <br>the jury to accept as conclusive any fact judicially noticed. In a <br>criminal case, the court shall instruct the jury that it may, but <br>is not required to, accept as conclusive any fact judicially <br>noticed." Fed. R. Evid. 201(g). "Congress intended to . . . create <br>one kind of judicial notice for criminal cases and another for <br>civil cases." 21 Wright & Graham, Federal Practice and Procedure <br> 5111, at 274 (1999 Supp.). "In a criminal case, Rule 201(g) <br>treats judicial notice like a presumption; it relieves one party of <br>the need to produce evidence but does not prevent the other party <br>from contesting" the noticed fact with evidence and argument to the <br>jury." Id. at 534. <br>  The instruction offered by the court was as follows: <br>    Even though no evidence has been introduced <br>  about it in your presence,[] I believe that <br>  the fact that the Metropolitan Detention <br>  Center is within a land reserved for the use <br>  of the United States and under its exclusive <br>  jurisdiction . . . is of such common knowledge <br>  and can be so accurately and readily <br>  determined from the Metropolitan Detention <br>  Center officials that it cannot reasonably be <br>  disputed. You may, therefore, reasonably treat <br>  this fact as proven even though no evidence <br>  has been presented on this point before you. <br>      As with any fact presented in the case, <br>  however, the final decision whether or not to <br>  accept it is for you to make and you are not <br>  required to agree with me. <br> <br>This instruction was based on a nearly identical instruction from <br>the Eighth Circuit, Model Crim. Jury Instr. 8th Cir.  2.04 (1989); <br>see also 1 Weinstein's Federal Evidence  201.34[3] (1999) (quoting <br>Federal Judicial Center Pattern Criminal Jury Instructions, no.7 <br>(commentary), which is itself based on one of the few opinions <br>treating the application of Rule 201(g), United States v. Deckard, <br>816 F.2d 426, 428 (8th Cir. 1987)). As in Deckard, "[h]ere the <br>trial court meticulously followed the command of Rule 201(g). After <br>having instructed the jury generally on presumption of innocence <br>and burden of proof," 816 F.2d at 428, the court issued an <br>instruction that complied entirely with the dictates of the rule.  <br>  Of course, compliance with Rule 201 does not establish <br>that application of Rule 201 in this case was constitutional.  The <br>Sixth Amendment of the Constitution guarantees to a criminal <br>defendant the opportunity for a jury to decide guilt or innocence.  <br>See Duncan v. Louisiana, 391 U.S. 145, 149 (1968).  "A necessary <br>corollary is the right to have one's guilt determined only upon <br>proof beyond the jury's reasonable doubt of every fact necessary to <br>constitute a charged crime." United States v. Mentz, 840 F.2d 315, <br>319 (6th Cir. 1988); see also Moore v. United States, 429 U.S. 20, <br>22 (1976) (per curiam).  "[A] judge may not direct a verdict of <br>guilty no matter how conclusive the evidence." United Bhd. of <br>Carpenters and Joiners v. United States, 330 U.S. 395, 408 (1947); <br>see also  United States v. Argentine, 814 F.2d 783, 788 (1st Cir. <br>1987). "A plea of not guilty places all issues in dispute, even the <br>most patent truths." Mentz, 840 F.2d at 320 (internal quotation <br>marks omitted).  <br>    Nonetheless, there is widespread agreement that Rule <br>201(g), which makes judicial notice non-conclusive in criminal <br>cases, adequately safeguards the criminal defendant's Sixth <br>Amendment right to a trial by jury.  In rejecting a version of <br>201(g) that would have made judicial notice conclusive in both <br>civil and criminal cases, Congress emphasized that while a <br>"mandatory instruction to a jury in a criminal case to accept as <br>conclusive any fact judicially noticed is inappropriate because <br>contrary to the spirit of the Sixth Amendment right to a jury trial <br>. . . a discretionary instruction in criminal trials," is <br>constitutional.  H.R. Rep. 93-650, at 6-7 (1973).  Commenting on <br>the original draft of Rule 201 which made the judicial notice non- <br>conclusive in criminal cases (the version ultimately adopted by <br>Congress), the Advisory Committee noted:    <br>    The considerations which underlie the general <br>  rule that a verdict cannot be directed against <br>  the accused in a criminal case seem to <br>  foreclose the judge's directing the jury on <br>  the basis of judicial notice to accept as <br>  conclusive any adjudicative facts in the case. <br>  However, this view presents no obstacle to the <br>  judge's advising the jury as to a matter <br>  judicially noticed, if he instructs them that <br>  it need not be taken as conclusive. <br> <br>1 Weinstein's Federal Evidence  201App.01[3] (quoting Fed.R.Evid. <br>201 Advisory Committee's note (March 1969 draft)).  <br>  Moreover, the few courts that have considered the <br>constitutionality of Rule 201 have reached similar conclusions.  In <br>Mentz, the Sixth Circuit ruled that "[a] trial court commits <br>constitutional error when it takes judicial notice of facts <br>constituting an essential element of the crime charged, but fails <br>to instruct the jury according to rule 201(g)." 840 F.2d at 322 <br>(emphasis provided).  Similarly, in United States v. Jones 580 F.2d <br>219, 223-24 (6th Cir. 1978), the court concluded that Rule 201(g) <br>preserves the jury's "traditional prerogative."  More generally, <br>numerous Courts of Appeals have upheld judicial notice that a <br>location is within the jurisdiction of the United States.  <br>Hernndez-Fundora, 58 F.3d at 811 (2d Cir.) (federal penitentiary); <br>Bowers, 660 F.2d at 531 (5th Cir.) (federal penitentiary); See <br>Piggie, 622 F.2d at 487-90 (10th Cir.) (federal penitentiary); <br>United States v. Lavender, 602 F.2d 639, 641 (4th Cir. 1979) <br>(federal highway); Blunt, 558 F.2d at 1247 (6th Cir.) (federal <br>penitentiary);  United States v. Hughes, 542 F.2d 246, 248 n. 1 <br>(5th Cir. 1976) (military base); United States v. Anderson, 528 <br>F.2d 590, 591-92 (5th Cir. 1976) (per curiam) (federal <br>penitentiary); United States v. Benson, 495 F.2d 475, 481 (5th Cir. <br>1974) (military base);  United States v. Miller, 499 F.2d 736, 739- <br>40 (10th Cir. 1974) (federal penitentiary); Hayes v. United States, <br>367 F.2d 216, 218 (10th Cir. 1966) (federal penitentiary).  <br>Accordingly, we conclude that the trial court did not err by taking <br>judicial notice that MDC-Guaynabo was within the "special maritime <br>and territorial jurisdiction of the United States." <br>                              III. <br>Jury instructions <br>(a) Self-defense instruction <br>  Bello claims that the court erred in refusing to instruct <br>the jury on the elements of self-defense.  However, the court <br>correctly found that the facts of this case did not "conform[] to <br>the normal understanding of self-defense: a use of force necessary <br>to defend against an imminent use of unlawful force."  United <br>States v. Haynes, 143 F.3d 1089, 1090 (7th Cir.), cert denied 119 <br>S. Ct. 260 (1998) ( 113(a)(6) case) (citing Model Penal Code <br> 3.04(1) (1962)); 1 Wayne R. LaFave & Austin W. Scott, Substantive <br>Criminal Law  5.7 (1986) (defendant claiming self-defense must <br>show "immediate danger of unlawful bodily harm from his adversary" <br>and that the force used was reasonable and necessary to avoid the <br>danger); First Circuit Pattern Crim. Jury Instr.  5.04 ("Use of <br>force is justified when a person reasonably believes that it is <br>necessary for the defense of oneself or another against the <br>immediate use of unlawful force.  However, a person must use no <br>more force than appears reasonably necessary in the <br>circumstances."). <br>  There was no evidence Bello was in immediate danger at <br>the time he committed the assault in the prison recreational yard.  <br>Indeed, the evidence established that a cooling off period of (at <br>minimum) eighteen hours had passed between the alleged threat in <br>the dining hall and the assault in the recreation yard.  Moreover, <br>"absence of lawful alternatives is an element of all lesser-evil <br>defenses, of which self-defense is one."  Haynes, 143 F.3d at 1090- <br>91.  Bello could have reported the incident to the guards and <br>requested the protection they were required to provide, <br>notwithstanding his assertion that he faced greater danger from <br>other inmates if he were labeled a "snitch."  See Haynes, 143 F.3d <br>at 1090 (rejecting "snitch" defense to sneak attack on dominoes- <br>playing fellow inmate under  113(a)(6)).  Although "a defendant is <br>entitled to an instruction as to any recognized defense for which <br>there exists evidence sufficient for a reasonable jury to find in <br>his favor," Mathews v. United States, 485 U.S. 58, 63 (1988), here <br>the court correctly found that no reasonable jury could have found <br>that Bello acted in self-defense as the law defines it.  The court <br>did not err in refusing to instruct the jury on self-defense. <br>(b) Duress instruction <br>  "A duress defense has three elements: 1) an immediate <br>threat of serious bodily injury or death, 2) a well-grounded belief <br>that the threat will be carried out, and 3) no reasonable <br>opportunity to escape or otherwise to frustrate the threat."  <br>United States v. Arthurs, 73 F.3d 444, 448 (1st Cir. 1996).  As we <br>have already discussed in rejecting the self-defense claim, there <br>was no immediate threat of serious bodily injury or death here, and <br>Bello's claim thus fails at the first step. <br>                              IV. <br>The jury note <br>  Bello argues in his brief on appeal that the court erred <br>in failing to notify and consult counsel before the court responded <br>to the jury's note requesting "the legal definition of self- <br>defense."  Subsequent to oral argument in this case, the parties <br>stipulated that the court called counsel into chambers in order to <br>discuss the note from the jury requesting clarification on self- <br>defense.  This stipulation negates Bello's earlier assertion of <br>error.  <br>  "The preferred practice for addressing a question from a <br>deliberating jury includes ensuring that the question is reduced to <br>writing, marking the note as an exhibit for identification, sharing <br>it with counsel, and affording the lawyers an opportunity to <br>suggest an appropriate rejoinder.  Withal, this practice is not the <br>product of an ironclad rule, and the trial court retains a modicum <br>of flexibility to adjust to the exigencies of particular <br>situations."  United States v. Hernndez, 146 F.3d 30, 35 (1st Cir. <br>1998) (citations omitted).  The note was entered into the record, <br>and the stipulation indicates that the court met every other <br>element of the ideal procedure described above.  (The parties do <br>differ as to whether a court reporter was present in chambers, and <br>we have no record of what was discussed in chambers, but the <br>stipulation indicates that the note was discussed.) <br>                               V. <br>Sentencing issues <br>(a) Downward departure <br>  Bello claims that the court erred in not granting his <br>request for a downward departure.  Bello's request was predicated <br>on the victim's conduct (i.e. Santana's threat) and coercion and <br>duress, factors which the guidelines explicitly allow a court to <br>consider in departing from the guideline sentencing range.  See <br>U.S.S.G.  5K2.10 (victim's conduct), 5K2.12 (coercion and <br>duress).  "While affirmative decisions to depart from the <br>guidelines are reviewable on appeal, we ordinarily lack <br>jurisdiction to review a decision not to depart, unless the <br>sentencing court erroneously believed it lacked the authority to <br>depart."  United States v. Portela, 167 F.3d 687, 708 (1st Cir. <br>1999); see also 18 U.S.C.  3742(f); United States v. Gifford, 17 <br>F.3d 462, 473 (1st Cir.1994) ("[A]ppellate jurisdiction may attach <br>if it appears that the failure to depart stemmed from the <br>sentencing court's mistaken impression that it lacked the legal <br>authority to deviate from the guideline range or, relatedly, from <br>the court's misapprehension of the rules governing departures."). <br>Bello claims that the court misunderstood that it could invoke <br>duress and coercion as mitigating factors justifying a downward <br>departure despite the fact that the court had rejected self-defense <br>and duress as complete defenses to conviction.  However, nothing in <br>the sentencing transcript supports the argument that the court <br>misunderstood that the departure Bello requested was legally <br>permissible.  The sentencing transcript, instead, betrays the <br>incredulity of the trial judge at the factual claim being made.  <br>The colloquy between the court and Bello's counsel turned entirely <br>on the facts of the case, and there is no indication that the court <br>believed that a downward departure on these grounds was unavailable <br>as a matter of law.  We therefore lack jurisdiction to review the <br>court's discretionary decision not to depart from the guideline <br>sentencing range. <br> <br>(b) Adjustment for acceptance of responsibility <br>  Bello asserts that the court erred in refusing to grant <br>him a two-level downward adjustment for acceptance of <br>responsibility under U.S.S.G.  3E1.1(a).  Application Note 2 to <br>U.S.S.G.  3E1.1 states: <br>    This adjustment is not intended to apply to a <br>  defendant who puts the government to its <br>  burden of proof at trial by denying the <br>  essential factual elements of guilt, is <br>  convicted, and only then admits guilt and <br>  expresses remorse. Conviction by trial, <br>  however, does not automatically preclude a <br>  defendant from consideration for such a <br>  reduction. In rare situations a defendant may <br>  clearly demonstrate an acceptance of <br>  responsibility for his criminal conduct even <br>  though he exercises his constitutional right <br>  to a trial. This may occur, for example, where <br>  a defendant goes to trial to assert and <br>  preserve issues that do not relate to factual <br>  guilt (e.g., to make a constitutional <br>  challenge to a statute or a challenge to the <br>  applicability of a statute to his conduct). In <br>  each such instance, however, a determination <br>  that a defendant has accepted responsibility <br>  will be based primarily upon pre-trial <br>  statements and conduct. <br> <br>U.S.S.G.  3E1.1, comment. (n.2) (emphasis added).  An assertion of <br>self-defense is a denial of an essential factual element of guilt <br>for the purposes of this guideline section.  See United States v. <br>Branch, 91 F.3d 699, 742 (5th Cir. 1996) (rejecting  3E1.1 <br>reduction where defendant claimed self-defense); United States v. <br>Waloke, 962 F.2d 824, 832 (8th Cir. 1992) (same); see also United <br>States v. Bennett, 928 F.2d 1548, 1557 (11th Cir. 1991) (finding <br>self-defense claim one of several factors supporting <br>inapplicability of  3E1.1).  Moreover, Bello has failed on appeal <br>to refer to any statements or conduct tending to establish that he <br>accepted responsibility prior to trial.  The court did not err in <br>denying the adjustment. <br>  Affirmed.</pre>

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