Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1991)

MEMORANDUM^** 

Antonio Aburto-Medina appeals his sentence, imposed under the United States Sentencing Guidelines (Guidelines or U.S.S.G.), following his guilty plea to a one count superseding information charging him with importation of 115 kilograms of marijuana in violation of 21 U.S.C. §§ 952 and 960. Aburto-Medina 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 found that the probation officer correctly denied the two point reduction for acceptance of responsibility. The probation officer concluded that Aburto-Medina had not accepted responsibility for his crime because he adamantly denied being involved in the importation of drugs and stated that although he pled guilty to the charges, he is innocent of any wrongdoing. The district court also found that Aburto-Medina gave four very inconsistent accounts of his actions to the primary inspector at the border checkpoint where he was stopped and to the probation officer who prepared the presentence report. The district court concluded that because Aburto-Medina told inconsistent stories he was not entitled to a two point reduction for acceptance of responsibility.

The district court's finding that Aburto-Medina did not clearly demonstrate a recognition and affirmative acceptance of personal responsibility for his crime has a firm foundation in the facts and is not clearly erroneous. See Smith, 905 F.2d at 1301-02; Gonzalez, 897 F.2d at 1020.

AFFIRMED.