Unpublished Disposition, 904 F.2d 41 (9th Cir. 1989)

MEMORANDUM^** 

Defendant, Jose Amaya-Vasquez, appeals from the sentence he received pursuant to the Sentencing Guidelines ("Guidelines"). He contends that the district court erred when it refused to award him an offense level credit for acceptance of responsibility. We affirm.

FACTS

On June 19, 1989, Amaya pleaded guilty to a one-count information which charged him with transportation of an undocumented alien into the United States, in violation of 8 U.S.C. § 1324(a) (1) (B). The plea agreement stated that Amaya agreed to help the alien, Ana Ruth Rios-Guzman, reach Los Angeles for a $1,040 fee. Amaya led her with a group of aliens to Agua Prieta, Mexico. Amaya then engaged a Ricardo Montenegro to lead her from Agua Prieta into the United States. A William Sandoval then conducted Rios to Sky Harbor Airport, in Phoenix, Arizona. She was to fly to Los Angeles. Both were arrested at the airline departure gate.

At the change of plea proceeding, Amaya admitted that he led Rios to Agua Prieta. He admitted that he arranged for her to pay the $1,040 fee, but stated that Montenegro set the fee.

When the court asked Amaya if he intended to transport Rios into the United States, Amaya responded evasively. He stated that he only helped her to the border and that he at most arranged for someone else to help her enter the United States. He finally admitted that he helped Rios illegally enter the United States.

He denied that he transported Rios for money. The court then suggested that if Amaya did not believe he was guilty, he could opt for a jury trial. Finally, the court read Amaya the information and obtained Amaya's admission that his intent was to get something in return for his assistance.

The Pre-Sentence Report ("PSR") described the smuggling scheme. The PSR estimated the fee at between $1,000 and $1,600. The PSR recited Amaya's version of the incident as follows:

The defendant states he helped Anna Ruth Rios-Guzman get to the Mexican border from El Salvador. Although he did this as a favor to her, he did receive $500. He denies charging her to transport her to the United States. He also states he was not involved in smuggling people into the United States from El Salvador.

The PSR did not suggest that Amaya receive a credit for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1.

The district court refused to award the credit. The court observed that a plea did not automatically result in the credit. According to the court, the Sentencing Commission "required that there be something more than simply admitting to the charge. That there does have to be some full acceptance, from full disclosure, some effort to cooperate, all of those things, before there's an automatic adjustment for acceptance of responsibility." The court sentenced defendant to eighteen months' imprisonment. Amaya filed a timely notice of appeal.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a) (2). The district court's determination regarding acceptance of responsibility under U.S.S.G. Sec. 3E1.1 is to be accorded great deference. U.S.S.G. Sec. 3E1.1 commentary, application note 5. That determination is factual, and we review it for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). Questions concerning the constitutionality of the Guidelines are reviewed de novo. United States v. Belgard, 894 F.2d 1092, 1095 (9th Cir. 1990).

DISCUSSION

A defendant is entitled to an offense level credit for acceptance of responsibility " [i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." U.S.S.G. Sec. 3E1.1. Amaya contends that the district court required him to accept responsibility for all of his criminal conduct, as opposed to that conduct to which he pleaded guilty.

The court may consider both the offense of conviction and conduct connected with the offense. The Guidelines require adjustments to be determined on the basis of:

all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense.

U.S.S.G. Sec. 1B1.3(a) (1). Thus, conduct connected with the offense of conviction, even if uncharged, can be considered in determining whether a defendant has accepted responsibility.

The acceptance of responsibility adjustment does not violate the fifth amendment privilege against self-incrimination. Gonzalez, 897 F.2d at 1020-21. The adjustment is a benefit for defendants who make the necessary showing. It is constitutional to encourage guilty pleas by providing that benefit. United States v. Belgard, 694 F. Supp. 1488, 1497 (D. Or. 1988), aff'd, 894 F.2d 1092 (9th Cir. 1990). See also Gonzalez, 897 F.2d at 1021.

Here the district court based its finding upon Amaya's failure to accept responsibility for the offense to which he pleaded guilty and upon conduct connected with that offense. The PSR's discussion and the Government's position on acceptance of responsibility were essentially limited to those circumstances. The court's discussion indicated that it, too, focused upon the offense to which Amaya pleaded guilty.

A defendant has the burden of proof if he wishes to obtain the credit, and he must make the showing by a preponderance of the evidence. United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). Amaya failed to meet that burden. He was evasive at his change of plea proceeding. Afterwards, in his interview with the Probation Officer, Amaya attempted to evade responsibility for the very actions to which he pleaded guilty. At best, Amaya grudgingly admitted his conduct. The district court concluded that Amaya had not accepted responsibility for his offense. That conclusion was not clearly erroneous.

AFFIRMED.