* This order and judgment is not binding precedent, e xcept under the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

### JAN 10 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 99-1250

v. (D. Colorado) GARY NORMAN,

Defendant - Appellant. (D.C. No. 94-CR-350-1-S)

ORDER AND JUDGMENT *

Before KELLY , ANDERSON , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Gary Norman, aka “Stitch,” was charged in March 199 5 in a five-count indictment with possession with intent to distribut e methamphetamine, being a felon in possession of a firearm, and three other c harges involving firearms and a destructive device. This arose out of an episode i n which Mr. Norman was pulled over following a traffic accident, and police offic ers discovered weapons and methamphetamine on his person and in and around his vehicle. Mr. Norman pleaded not guilty on all charges and pr oceeded to trial. He testified in his own defense and denied his guilt b ut admitted that he had possessed methamphetamine and that he had possesseda firearm. The jury convicted Mr. Norman of possessing with intent to d istribute methamphetamine and being a felon in possession of a firearm, but a cquitted him of the remaining charges. He received a 151-month sentence for the drug conviction and a concurrent 120-month sentence for the firearms poss ession. He also received an enhancement for obstruction of justice. On appeal from that conviction and sentence, we rev ersed the felon in possession conviction and the obstruction of justic e enhancement, vacated Mr. Norman’s sentence and remanded the case for resentencing. See United States v.
Norman , 129 F.3d 1393 (10th Cir. 1997). Mr. Norman was r esentenced in May 1999. He requested an adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1, which the district court denied. Mr. Norm an’s criminal history category-3-

was determined to be Category II, with an offense l evel of 28. He declined the opportunity to make a statement prior to sentencing . The court sentenced Mr. Norman to 96 months imprisonment. He appeals, argu ing only that the court erred in not granting him a downward adjustment foracceptance of responsibility. U.S.S.G. § 3E1.1 provides for a two-point downward adjustment in a defendant’s base offense level if “the defendant cl early demonstrates acceptance of responsibility for his offense.” The defendant bears the burden of proving entitlement to that adjustment. See United States v. Hill , 197 F.3d 436, ___ (10th Cir. 1999). “A district court’s decision regarding whether a defendant has accepted responsibility for purposes of § 3E1.1 is a factual determination we review only for clear error.” Id. Further, because the sentencing judge “is in a unique position to evaluate the defendant’s accepta nce of responsibility,” his or her determination “is entitled to great deference o n review.” U.S.S.G. § 3E1.1, comment. (n.5); see also United States v. Janusz , 135 F.3d 1319, 1325 (10th Cir. 1998). The commentary to § 3E1.1 states that the § 3E1.1 a djustment “is not intended to apply to a defendant who puts the gover nment to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, comment. (n.2). However, as Mr. Norman argues, and the government c oncedes, the fact that Mr.-4-

Norman chose to go to trial does not automatically and irrevocably bar him from receiving a downward adjustment for acceptance of r esponsibility. There may be “rare” situations where “a defendant may clearly de monstrate an acceptance of responsibility for his criminal conduct even thoughhe exercises his constitutional right to a trial.” Id. This is not the rare situation where a downward a djustment is merited even though the defendant went to trial. Although Mr. Norman admitted at trial that he possessed methamphetamine , he did not admit to any intention to distribute the drug. He was convictedof possession with intent to distribute methamphetamine. He never admitted any of the essential elements of his crime before trial. He made no expression of r emorse nor did he accept responsibility for his crime at his resentencing he aring. We perceive no clear error in the court’s determination not to grant hima downward adjustment. For the forgoing reasons, we AFFIRM the sentence imposed by the district
court. ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge