NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

 v.

CHARLES LYNN DECOTEAU,

 Defendant - Appellant.

No. 15-30067

D.C. No. 4:14-cr-00065-BMM-1

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Brian M. Morris, District Judge, Presiding

Submitted March 9, 2016** 

Portland, Oregon

Before: FISHER and WATFORD, Circuit Judges, and WALTER, Senior District

Judge.

*** 

FILED

MAR 16 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 * This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

 ** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

 *** The Honorable Donald E. Walter, Senior United States District Judge

for the Western District of Louisiana, sitting by designation.
This is a direct criminal appeal, challenging only the sentence imposed.

Defendant-Appellant Charles Lynn Decoteau (“Appellant”) beat a man to death by,

inter alia, kicking him with steel-toed boots. The crime took place in Appellant’s

home on the Fort Peck Indian Reservation, in Poplar, Montana. Appellant was

charged with Voluntary Manslaughter (Count I), Assault Resulting in Serious

Bodily Injury (Count II) and Assault with a Dangerous Weapon, namely steel-toed

boots (Count III). After a jury trial, Appellant was convicted of the lesser-included

charge of Involuntary Manslaughter on Count I and convicted as charged on

Counts II and III. As to each count, the district court imposed concurrent sentences

of 48 months’ imprisonment, a below-guidelines term, followed by three years of

supervised release. Appellant now argues that this Court should vacate and remand

for re-sentencing because the district court: (1) violated the Fifth Amendment’s

guarantee against double jeopardy by failing to merge his counts of conviction for

sentencing purposes; and (2) erred by denying Appellant a downward adjustment

for acceptance of responsibility. For the following reasons, we affirm. 

In denying Appellant’s motion for merger and dismissal of Counts II and III

at sentencing, the district court correctly applied the elemental test, set forth in

Blockburger v. United States, 284 U.S. 299 (1932), to determine that each count of

conviction required proof of a unique element, not shared by the other counts.

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Appellant acknowledges the applicability of the Blockburger test but argues that

Ball v. United States, 470 U.S. 856 (1985), requires departure from Blockburger

where, as here, the offenses of conviction are the product of a single criminal

objective. Appellant’s argument fails to recognize that Blockburger itself affirmed

two convictions resulting from one single drug sale. 284 U.S. at 304 (“Applying

the test, we must conclude that here, although both sections were violated by the

one sale, two offenses were committed.”). Relying on Ball, and its application in

United States v. Anderson, 850 F.2d 563 (9th Cir. 1988), Appellant urges a

departure from Blockburger’s elemental comparison. However, Ball and Anderson

are both easily distinguishable, in that both of those cases involved crimes of

conviction for which proof of one necessarily included proof of the other. See Ball,

470 U.S. at 862 (Congress could not have intended multiple punishments for

unlawful receipt and unlawful possession of a firearm because proof of one offense

“necessarily includes proof” of the other (emphasis omitted)); see also Anderson,

850 F.2d at 568 (Ball application of Blockburger indicates that Congress did not

intend multiple punishments, where proof of embezzlement “will necessarily

include” proof of unlawful delay of mail). 

Here, the same cannot be said for Appellant’s three crimes of conviction.

The Count I conviction for involuntary manslaughter, for a violation of 18 U.S.C.

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§ 1112(a), required, inter alia, proof of death, see United States v. Paul, 37 F.3d

496, 499 (9th Cir. 1994); the Count II conviction, for a violation of 18 U.S.C.

§§ 113(a)(6) and 1153(a), required proof that the assault resulted in the victim’s

serious bodily injury, see United States v. Smith, 520 F.3d 1097, 1101 (9th Cir.

2008) (citing 18 U.S.C. §§ 113(b)(2) and 1365(h)(3)); and the Count III

conviction, for a violation of 18 U.S.C. §§ 113(a)(3) and 1153(a), required proof:

“(1) that the defendant intentionally struck or wounded the victim; (2) that the

defendant acted with the specific intent to do bodily harm; and (3) that the

defendant used a ‘dangerous weapon[,]’” Smith, 520 F.3d at 1101. Because proof

of one crime of conviction did not necessarily include proof of another, and

because there is no clear evidence of Congress’s contrary intent, the Blockburger

presumption indicates that Congress intended multiple punishments for the same

underlying act. See Albernaz v. United States, 450 U.S. 333, 340 (1981) (noting the

Blockburger elements test controls absent “a clear indication of contrary legislative

intent”). After de novo review, we find no error in the district court’s decision not

to merge and dismiss Counts II and III at sentencing. 

Regarding Appellant’s entitlement to an adjustment based on acceptance of

responsibility, this is a factual determination reviewed for clear error. See United

States v. Felix, 87 F.3d 1057, 1060 (9th Cir. 1996). “The defendant bears the

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burden of showing that he has accepted responsibility for his actions.” United

States v. Rojas-Pedroza, 716 F.3d 1253, 1270 (9th Cir. 2013) (quoting United

States v. Ramos-Medina, 706 F.3d 932, 940 (9th Cir. 2012)). Appellant primarily,

and correctly, argues that there is no per se bar against downward adjustments for

acceptance of responsibility based on a defendant’s decision to go to trial. Because

Appellant denied only that the killing was intentional, rather than denying that his

actions caused the victim’s death, Appellant urges us to find that this was the rare

case, contemplated by U.S.S.G. § 3E1.1 cmt. n.2, where a two-level reduction for

acceptance of responsibility may occur after trial. See Rojas-Pedroza, 716 F.3d at

1270. 

Before denying Appellant’s request, the sentencing court entertained oral

argument. In accordance with the guidance set forth in the application notes to

§ 3E1.1, the court focused its inquiry on the effect, if any, of Appellant’s pre-trial

statements to law enforcement agents. See U.S. Sentencing Guidelines Manual

§ 3E1.1 cmt. n.2 (“In each such instance, however, a determination that a

defendant has accepted responsibility will be based primarily upon pre-trial

statements and conduct.”). The court also recognized that it had the benefit of

having presided over Appellant’s trial and “heard in detail what happened on the

day of the event in question, [and] what was in the minds of all of the actors at that

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time.” After explicitly acknowledging that proceeding to trial was not mutually

exclusive with acceptance of responsibility, the court made a thoughtful and

supported determination that Appellant was not entitled to a downward adjustment

based on the facts of the case. The court then went on to consider defense counsel’s

arguments, pursuant to the 18 U.S.C. § 3553(a) factors, before imposing a sentence

below the advisory guideline range. Upon due consideration of the record, we

cannot say that the district court erred in its determination that this Appellant’s

statements did not comport with acceptance of responsibility. “This is especially

true given that ‘the determination of the sentencing judge [on this issue] is entitled

to great deference on review’ since ‘[t]he sentencing judge is in a unique position

to evaluate a defendant’s acceptance of responsibility.’” United States v.

Gamboa-Cardenas, 508 F.3d 491, 505 (9th Cir. 2007) (alterations in original)

(quoting U.S. Sentencing Guidelines Manual § 3E1.1 cmt. n.5). Appellant,

moreover, not only went to trial but did so to challenge his “factual guilt,” U.S.S.G.

§ 3E1.1 cmt. n.2, arguing the killing was “justified” on a defense-of-others theory. 

AFFIRMED.

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