United States of America, Plaintiff-appellee, v. Robert Wicktor, Defendant-appellant, 51 F.3d 287 (10th Cir. 1995)

Mr. Wicktor appeals the district court's refusal to adjust his sentence downward in accordance with U.S.S.G. 3E1.1. Our jurisdiction arises under 28 U.S.C. 1291 and 18 U.S.C. 3742(a) and we affirm.

The parties are familiar with the facts and we will not restate them here. We review the district court's determination of acceptance of responsibility for clear error. United States v. Hoenscheidt, 7 F.3d 1528, 1531 (10th Cir. 1993). We will disturb this determination only if it is without foundation. United States v. Amos, 984 F.2d 1067, 1071-72 (10th Cir. 1993). In this case, however, the record amply supports the district court's decision to deny the adjustment.

Additionally, we reject Mr. Wictor's argument that the district court's application of the 1994 version of the Sentencing Guidelines disadvantaged him so as to violate the Ex Post Facto Clause of Article I of the Constitution. See United States v. Gerber, 24 F.3d 93, 95 (10th Cir. 1994). We do not believe that the 1992 deletion of subsection (b) from U.S.S.G. 3E1.1 and the addition of the current Application Note 2 worked a substantive change, since under either the 1994 or 1991 versions, a defendant's going to trial does not preclude a sentencing court from awarding an adjustment for acceptance of responsibility. See United States v. Saucedo, 950 F.2d 1508, 1513-14 (10th Cir. 1991); U.S.S.G. 3E1.1 (Nov.1991) and (Nov.1994).