Unpublished Disposition, 936 F.2d 580 (9th Cir. 1991)

MEMORANDUM^** 

Ellison Howard Lupo appeals his sentence following a guilty plea to four counts of armed robbery of a savings and loan and two counts of armed bank robbery, in violation of 18 U.S.C. § 2113(a) (d), and one count of bank robbery, in violation of 18 U.S.C. § 2113(a). Lupo contends the district court erred by failing to grant him a reduction in his United States Sentencing Guidelines (Guidelines) offense level for acceptance of responsibility. In addition, Lupo argues the district court violated Fed. R. Crim. P. 32(a) (1) when denying him the acceptance of responsibility adjustment because it (1) failed to make a specific finding concerning the reason for the denial, (2) failed to give Lupo notice and an opportunity to be heard, and (3) relied upon unreliable information in making its determination.¹  We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Whether a defendant has accepted responsibility for his crime is a factual determination subject to the clearly erroneous standard of review. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). The determination of the district court is entitled to great deference. United States v. Ramos, 923 F.2d 1346, 1360 (9th Cir. 1991). A "defendant's acceptance of responsibility is a 'factor important to the sentencing determination' under [U.S.S.G.] Sec. 6A1.3(a).... A sentencing court therefore may not reject the reduction recommended in the presentence report without giving the defendant notice and an adequate opportunity to present information to the court." United States v. Brady, 928 F.2d 844, 847 n. 3 (9th Cir. 1991).² 

U.S.S.G. Sec. 3E1.1 provides for a downward adjustment in the base offense level if a defendant "clearly demonstrates a recognition and affirmative acceptance of personal responsibility" for his criminal conduct. The party seeking to alter the base offense level bears the burden of making the necessary showing by a preponderance of the evidence. United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). "The district court should make clear on the record its resolution of all disputed matters, and ... specific findings of fact are to be encouraged." United States v. Carlisle, 907 F.2d 94, 96 (9th Cir. 1990) (quoting United States v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990)). "For us to defer to a trial court's acceptance of responsibility determination, the record on this issue must be clear." Brady, 928 F.2d at 848 (footnote omitted).

Here, unlike in Brady, Lupo was on notice that the presentence report did not include a downward adjustment for acceptance of responsibility in its final sentencing recommendation.³  Lupo argued the issue of the acceptance of responsibility adjustment during the sentencing hearing. The district court rejected Lupo's arguments, stating:

I can't accept the fact that there has been, under all the circumstances of this case, an acceptance of responsibility in the true sense, though there have been the pleas of guilty entered.

The district court's determination was adequate, although just barely so. See, e.g., United States v. Singleton, 917 F.2d 411, 413 (9th Cir. 1990). Therefore, the district court did not clearly err in determining that Lupo did not deserve the adjustment for acceptance of responsibility. See Gonzalez, 897 F.2d at 1020; cf. Brady, 928 F.2d at 848; Carlisle, 907 F.2d at 96.

AFFIRMED.