Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1991)

MEMORANDUM^** 

Raymond Hughes appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.), following his guilty plea to one count of receiving child pornography in violation of 18 U.S.C. § 2252(a) (2). Hughes contends that the district court erred by refusing to grant him a two point downward adjustment in his base offense level for acceptance of responsibility under U.S.S.G. Sec. 3E1.1(a). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Whether a defendant has accepted responsibility for his crime within the meaning of the Guidelines is a factual determination which we review for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990).

" ' [T]he sentencing judge is in a unique position to evaluate the defendant's acceptance of responsibility,' and therefore her determination 'is entitled to great deference on review. We will not disturb the district court's determination unless it is without foundation.' " United States v. Smith, 905 F.2d 1296, 1301 (9th Cir. 1990) (quoting U.S.S.G. Sec. 3E1.1, comment n. 5). When seeking a downward adjustment, the defendant has the burden of proving by a preponderance of the evidence that a reduction is merited. United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990).

Here, the district court adopted the findings in the presentence report. The presentence report stated that although Hughes pled guilty to the charge of receiving child pornography, he did not admit having ordered a video tape of minors engaged in sexually explicit conduct. At sentencing, Hughes testified that because of his poor eyesight he could not read the order form properly and thought he was actually ordering tapes of girls who looked younger, but were not minors. Hughes admitted, however, that he had requested information on tapes of minors under age twelve engaged in sexually explicit conduct. The district court concluded that Hughes lacked credibility and that he had not genuinely accepted responsibility for his crime simply by admitting that he had placed an order for sexually explicit tapes and that he knew receiving child pornography was illegal.

The district court's conclusion that Hughes did not clearly demonstrate a recognition and affirmative acceptance of personal responsibility for his crime has a firm foundation in the facts. Thus, the district court did not clearly err by denying Hughes a two point reduction in his base offense level for acceptance of responsibility. See Smith, 905 F.2d at 1301-02; Gonzalez, 897 F.2d at 1020.

AFFIRMED.