United States of America, Plaintiff-appellee, v. Antolin Valderrama-hernandez, Defendant-appellant, 142 F.3d 447 (9th Cir. 1998)

MEMORANDUM^* 

Antolin Valderrama-Hernandez appeals the sentence imposed by the district court which denied him a two-level downward adjustment in sentence for acceptance of responsibility pursuant to U.S.S.G. § 3E1 .1. Hernandez was convicted by a jury for unlawful reentry by a previously deported alien, in violation of 8 U.S.C. § 1326. Our review is for clear error, United States v. Morales, 11 F.3d 915, 918 (9th Cir. 1993), and we affirm.

The acceptance of responsibility adjustment under U.S.S.G. § 3E1.1 generally is not intended to apply to a defendant who puts the government to its burden of proof at trial, is convicted, and only then admits guilt. U.S.S.G. § 3E1.1, Application note 2. While proceeding to trial does not automatically preclude a defendant from consideration for an acceptance of responsibility reduction, only in the unusual case will such an adjustment be warranted absent a guilty plea. Id., see also United States v. McKinney, 15 F.3d 849, 852 (9th Cir. 1994). Here, Hernandez states he went to trial solely to preserve his constitutional rights, knowing that his position as a previously deported felon was hopeless, but argues that he did little to inconvenience the government and his trial required little effort by the government. We conclude this is not an exceptional case and the district court did not err by denying the sentence reduction. See id.

AFFIRMED.