United States of America, Plaintiff-appellee, v. David Joseph Fanyak, Defendant-appellant, 145 F.3d 1341 (9th Cir. 1998)

Submitted May 14, 1998^** 

David Joseph Fanyak appeals the sentence imposed following his jury conviction for conspiracy to possess marijuana with the intent to distribute, in violation of 21 U.S.C. §§ 841(a) (1) and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for clear error, see United States v. Felix, 87 F.3d 1057, 1060 (9th Cir. 1996), and we affirm.

Fanyak contends that the district court erred by denying him a two-level adjustment for acceptance of responsibility because he went to trial only to challenge the applicability of the attempt statute to his conduct. See U.S.S.G. § 3E1.1, comment. (n.2) (1995). This contention lacks merit because Fanyak contested his factual guilt at trial for the conspiracy offense, the only offense of which he was convicted, and this is not a rare case where the reduction should be granted anyway. See U.S.S.G. § 3E1.1, comment. (n.2); United States v. Easter, 66 F.3d 1018, 1024 (9th Cir. 1995). Accordingly, the district court did not clearly err in denying an adjustment for acceptance of responsibility.

AFFIRMED.