* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 15 1997 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. LOROAN VERNERS, Defendant-Appellant. Nos. 95-5194 (D.C. No. 93-CR-001-02-C)

(NOK)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, KELLY and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined that oral argument would not materially assist the determination of this appeal. See F ED
. R. A PP
. P. 34(a); 10th C IR . R. 34.1.9. Therefore, the case is ordered submitted without oral argument.-2-

Laroan Verners was convicted of possession of cocai ne base with intent to distribute, establishment of manufacturing operatio ns, aiding and abetting his codefendant Guessinia Verners in the commission of th ose crimes, and use of a firearm during and in relation to a federal drug tr afficking crime, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 856(a)(1), and 1 8 U.S.C. §§ 2, and 924(c)(1). He was sentenced to a term of imprisonment of 375 m onths followed by a 10 year period of supervised release. On direct appeal we affirmed all convictions except that of aiding and abetting Guessinia Verners in th e possession of cocaine with intent to distribute because we reversed her convic tion on that count. United States v. Verners , 53 F.3d 291, 298 (10th Cir. 1995). On remand, Mr . Verners received the same sentence. He appeals his resente ncing, and we affirm. Mr. Verners raises two issues on appeal. First, he suggests that the district court should have reduced his sentence under USSG § 3E1.1 for acceptance of responsibility for his crime. Second, he contends the district court failed to state in open court the reasons for its imposition of sentence in violation of 18 U.S.C. § 3553(c). We will consider each of these issues in turn.

Acceptance of Responsibility Reduction in Sentence Section 3E1.1 of the Sentencing Guidelines provides that “[i]f the defendant clearly demonstrates acceptance of respon sibility for his offense, [the-3-

court shall] decrease the offense level by 2 levels .” USSG § 3E1.1(a). The commentary following section 3E1.1(a) elucidates th at a “voluntary surrender to authorities promptly after commission of the offens e” is an appropriate consideration in determining whether subsection (a) has been satisfied. U. S. S ENTENCING G UIDELINES M ANUAL§ 3E1.1, comment. (n.1(d)) (1995). Mr. Verners argues that because his presentence investi gation report stated he had voluntarily surrendered to the authorities, the dis trict court erred by failing to grant him a 2 level sentence reduction. “The district court has broad discretion to determi ne whether to award [a] reduction [in sentence under USSG § 3E1.1], and we will not disturb the court’s decision absent clearly erroneous findings.” Unite d States v. Gassaway , 81 F.3d 920, 922 (10th Cir. 1996). “A defendant bears the burden of establishing his entitlement to a . . . reduction under § 3E1.1." I d. While it is true the presentence report mentioned that Mr. Verners voluntarily surrendered to the authorities, the rep ort did not recommend a sentence reduction based on that fact. Instead, th e report states that “the defendant does not qualify for acceptance of respon sibility.” Aplt’s Brief at doc. C. It appears from the record before this court th at Mr. Verners failed to object to that portion of the presentence report. There are no written motions for sentence reduction based on acceptance of responsibility, an d Mr. Verners did not take the1 Even if Mr. Verners had requested a sentence reduc tion pursuant to USSG

§ 3E1.1, there was ample evidence on which to base a denial of a reduction. Although Mr. Verners did surrender voluntarily, he pled not guilty to the offenses for which he was charged and required the Government to prove all elements of its case. See USSG § 3E1.1(a), comment. (n.2). -4- opportunity to raise the issue in his resentencing hearing. Part of Mr. Verners’ burden in obtaining a sentence reduction includes r equesting that reduction. There can be no error in failing to grant a sentenc e reduction that was not requested. 1

Failure to State Basis for Sentencing Range in Open Court Section 3553 of title 18 requires that when the cou rt imposes a sentence of greater than twenty four months, as it did here, “[ t]he court, at the time of sentencing, shall state in open court the reason fo r its imposition of the particular sentence.” 18 U.S.C. § 3553(c). In addition, if t he sentencing guidelines provide a sentencing range, the court must state “the reaso n for imposing a sentence at a particular point within the range.” Id. § 3553(c)(1). Mr. Verners contends the district court failed on resentencing to state the reason for sentencing him in the middle of the applicable sentencing range. As the Government points out, although the districtcourt did not state its reasons for Mr. Verner’s sentencing range at resent encing, the court expressly referred back to Mr. Verner’s original sentencing w here the court did state its-5-

reasons. With no objection from counsel, the judge proceeded to pronounce the sentence. It is clear from the record that the two sentencing pronouncements, taken together, fully articulate the reasons for Mr . Verner’s sentencing. The complete record satisfies the requirements of secti on 3553(c), and we find no

error. For the foregoing reasons, we AFFIRM

. SUBMITTED FOR THE COURT Stephanie K. Seymour Chief Judge