United States Court of Appeals,

Eleventh Circuit.

No. 95-2059

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Martin GONZALEZ, Edwin Nunez, Defendants-Appellants.

Dec. 20, 1995.

Appeal from the United States District Court for the Middle

District of Florida. (No. 94-105-Cr-J-16), John H. Moore, II, Chief

Judge.

Before DUBINA, BLACK and CARNES, Circuit Judges.

PER CURIAM:

This appeal originally involved two co-defendants, Martin

Gonzalez and Edwin Nunez, but we have severed the cases and issue

separate opinions in each. This opinion addresses only the appeal

by Gonzalez of his conviction for conspiracy to pass and possess

counterfeit money, possession of counterfeit money, and passing

counterfeit money, under 18 U.S.C. §§ 371 and 472. He raises two

issues. First, he contends the district court erred in denying his

motion to suppress evidence. Second, he contends the district

court erred in not affording him a two level offense reduction for

acceptance of responsibility under the United States Sentencing

Guidelines.

I. The Facts

In the late hours of July 1 or early morning hours of July 2,

1994, a bartender at a Daytona Beach nightclub received from a

customer, John Starkie, a twenty-dollar bill, which the bartender
suspected was counterfeit. Starkie was with Martin Gonzalez when

he passed the bill. While the bartender notified management,

Starkie and Gonzalez remained at the bar area. The bartender

pointed the two men out to her superiors. One of the managers

directed Starkie and Gonzalez to a back room of the nightclub.

At approximately 12:30 a.m. police officers were dispatched to

the nightclub. In the presence of an officer, the bartender

identified Starkie as the customer who had passed the counterfeit

bill to her. The officer examined the bill and believed it was

obviously counterfeit because of its texture.

One of the officers asked Gonzalez and Starkie if they had any

money and they reached into their pockets and took out additional

counterfeit bills. Shortly after producing the counterfeit bills,

the men were formally arrested and given a Miranda warning. After

that, several other counterfeit bills were found in the nightclub's

cash registers and brought to the back room.

Daytona Beach police then interviewed Gonzalez and Starkie

separately at the nightclub. Secret Service Special Agent

Pritchard was called to the scene and he also interviewed Gonzalez

and Starkie. Before interviewing the men, Agent Pritchard read

each a Miranda warning. Starkie admitted that he knew the

twenty-dollar bill was counterfeit and that he had passed it, but

he was reluctant to disclose the source of the bills. Pritchard

then allowed Starkie and Gonzalez to speak with each other. After

conferring with Gonzalez, Starkie disclosed that the counterfeit

bills came from an individual named Tony Garcia. Starkie described

Tony Garcia as a "Latino with a black ponytail." Both Starkie and
Gonzalez signed sworn statements, and Starkie led Agent Pritchard

to Garcia's residence. Tony Garcia turned out to be Edwin Nunez.

II. Procedure

A grand jury indicted Gonzalez, Starkie and Nunez on charges

of conspiracy to pass and possess conterfeit money, possession of

counterfeit money, and passing counterfeit money. Before trial,

Gonzalez filed a motion in limine to suppress physical evidence

(the counterfeit bills seized from Gonzalez's person) and

statements. Gonzalez's motion claimed that the police lacked

probable cause to arrest, and reasonable suspicion to detain, him.

The motion further alleged that the police had ordered him to give

them the counterfeit bills.

The magistrate judge consolidated Gonzalez's hearing with that

of his two co-defendants, Starkie and Nunez, both of whom also

filed motions to suppress. After four days of hearings [R11-155-

7], the magistrate judge issued a report and recommendation that

Gonzalez's motion to suppress be denied. The district court

adopted the report and recommendation as to Gonzalez.

Gonzalez then attempted to enter a conditional guilty plea to

preserve his right to appeal the denial of his motion to suppress.

The government opposed a conditional plea. In response, Gonzalez

waived his right to a jury trial. After a bench trial, the

district court found Gonzalez guilty of three counts of possessing

and passing counterfeit bills.

At sentencing, Gonzalez objected to his presentence report

because it did not recommend a two-level adjustment for acceptance

of responsibility pursuant to U.S.S.G. § 3E1.1. The court
overruled the objection, citing as grounds the four-day suppression

hearing. Gonzalez appeals his conviction, contending that the

district court erred in denying his motion to suppress, and that it

was error to deny him an acceptance of responsibility adjustment.

We address each contention in turn.

A. Denial of the Motion to Suppress Evidence

 The district court denied Gonzalez's motion to suppress the

counterfeit bills and the statements he made to officers at the

nightclub the evening of his arrest. We review the district

court's findings of fact on a motion to suppress only for clear

error, with the record being viewed in the light most favorable to

the party prevailing below (the government). United States v.

Allison, 953 F.2d 1346, 1349 (11th Cir.1992). We review the

district court's legal conclusions de novo. Id.

The district court found that Gonzalez voluntarily emptied his

pockets to reveal counterfeit bills. Unless Gonzalez was

unlawfully detained at the time he produced those bills, they are

admissible as evidence. The same is true of his statements.

Gonzalez contends that he was unlawfully detained at the time. He

argues that the officers lacked reasonable suspicion to detain him.

 It is well settled that a police officer may detain a person

under investigation when the officer has a reasonable suspicion

that the person is involved in criminal activity. United States v.

Tapia, 912 F.2d 1367, 1370 (11th Cir.1990). Reasonable suspicion

is determined from the totality of the circumstances. United

States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585-86, 104

L.Ed.2d 1 (1989). Although this standard is less demanding than
probable cause, the Fourth Amendment requires that the officer have

some minimal objective justification for the stop. Id. at 7, 109

S.Ct. at 1585. "Such facts may be derived from "various objective

observations, information from police reports, if such are

available, and consideration of the modes or patterns of operation

of certain kinds of lawbreakers.' " United States v. Williams, 876

F.2d 1521, 1524 (11th Cir.1989) (quoting United States v. Cortez,

449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

 Gonzalez contends that the police did not have reasonable

suspicion to detain him because he was not identified as having

passed a counterfeit bill; he was merely present when Starkie

passed a counterfeit bill. We have recognized that a person's mere

presence at the scene of a crime, without more, does not support a

finding of probable cause to arrest, e.g., Wilson v. Attaway, 757

F.2d 1227, 1238 (11th Cir.1985), but the issue before us is not

probable cause to arrest. The issue is reasonable suspicion to

detain. The police did not detain Gonzalez merely because he was

present at the nightclub. Gonzalez was with Starkie at the

nightclub and was standing beside him when Starkie passed the

counterfeit bill. A person's proximity to a person whom officers

have probable cause to believe is committing a crime may be

considered as a factor in assessing reasonable suspicion. United

States v. Sink, 586 F.2d 1041, 1047 (5th Cir.1978); United States

v. Silva, 957 F.2d 157, 159-61 (5th Cir.), cert. denied, --- U.S.

----, 113 S.Ct. 250, 121 L.Ed.2d 182 (1992).

 The officers were acting on more than an inchoate and

unparticularized suspicion here. See United States v. Worthington,
544 F.2d 1275, 1280 (5th Cir.), cert. denied, 434 U.S. 817, 98

S.Ct. 55, 54 L.Ed.2d 72 (1977). We are convinced that the district

court properly applied the law to its factual findings in deciding

that the police had reasonable suspicion to detain Gonzalez for

investigation. The evidence voluntarily produced, and statements

voluntarily made, by Gonzalez during the lawful pre-arrest

investigation was admissible against him.

B. The Sentencing Guidelines Issue

 Gonzalez also contends that the district court erred by

refusing to reduce his offense level for acceptance of

responsibility under section 3E1.1 of the United States Sentencing

Guidelines. Section 3E1.1 provides that a defendant who "clearly

demonstrates a recognition and affirmative acceptance of personal

responsibility for his criminal conduct" may receive a two-level

decrease in his offense level. U.S.S.G. § 3E1.1(a). We review the

district court's determination under section 3E1.1(a) for clear

error. United States v. Carroll, 6 F.3d 735, 739 (11th Cir.1993).

We have stated numerous times that "[t]he district court is in a

unique position to evaluate whether a defendant has accepted

responsibility for his acts, and this determination is entitled to

great deference on review." United States v. Pritchett, 908 F.2d

816, 824 (11th Cir.1990).

Comment 2 to section 3E1.1 provides that "[t]his adjustment is

not intended to apply to a defendant who puts the government 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." Gonzalez maintains that he accepted responsibility
because, apart from his challenge to the admissibility of the

evidence, he did not testify and deny actual guilt, and he saved

the court time by: (1) offering a conditional plea (rejected by

the government); (2) waiving his right to a jury trial; and (3)

stipulating to facts based upon transcripts of the motion hearing.

Comment 2 to section 3E1.1 states that if a defendant elects

to go forward with trial, it is a "rare situation" when the

defendant may nonetheless qualify for acceptance of responsibility.

Such a rare situation may exist when a defendant goes to trial only

to "preserve issues that do not relate to factual guilt." The

examples the comment gives of matters unrelated to factual guilt

are constitutional challenges to a statute and challenges to the

applicability of a statute to specific conduct. Those examples are

further removed from contesting "factual guilt" than is a challenge

to the admissibility of the evidence establishing factual guilt.

 Gonzalez was charged with possessing and passing counterfeit

twenty-dollar bills. The dispositive evidence was the evidence he

sought to suppress—the counterfeit bills found in his pocket and

his statements. This evidence was sufficient, and perhaps

necessary, to support his conviction. By challenging the

admissibility of the essential evidence against him, Gonzalez

attempted to avoid a determination of factual guilt and to thereby

escape responsibility for his crime. In view of the evidence,

Gonzalez's only practical defense to the charges was to challenge

the admissibility of the seized counterfeit bills and his

statements. And he did just that. Accordingly, the district court

concluded that Gonzalez was not entitled to a reduction for
acceptance of responsibility. Under these circumstances, the

district court's rejection of the acceptance of responsibility

reduction was not clear error.

Gonzalez cites United States v. Kimple, 27 F.3d 1409, 1413

(9th Cir.1994), for the proposition that the district court, in

determining a defendant's acceptance of responsibility, cannot

consider any constitutionally protected conduct. In that case the

defendant, like Gonzalez, filed a motion to suppress evidence, and

there was a hearing on that motion, which the defendant ultimately

lost. The Ninth Circuit said that "a defendant's exercise of

[constitutional] rights at the pretrial stage should not in and of

itself preclude a reduction for timely acceptance," and it held

that the defendant was entitled to receive the acceptance of

responsibility reduction if he pleaded guilty before the

prosecution began meaningful trial preparations and before the

district court unnecessarily expended its resources. Id. The

court expressly limited its holding, however, stating:

We decide only that given the facts of this particular case,

the district court did not inefficiently expend its judicial

resources in ruling on the pretrial motions. We do not

attempt, however, to set forth specific examples in which the

use of judicial resources would preclude an additional

one-point reduction; rather, such determinations should be

made on a case-by-case basis.

Id. at 1413 n. 4.

Kimple left the district courts of the Ninth Circuit with the

ability to refuse an acceptance of responsibility reduction when

the district court has unnecessarily expended its resources. Even

if we were to adopt Kimple 's reasoning, refusal of the sentencing

reduction in this case would still be appropriate. The district
court conducted hearings on the defendants' motions to suppress for

four days. Even if only a portion of those four days was devoted

to Gonzalez's motion, we could not say that it was clear error for

the district court to refuse to apply the reduction. Moreover,

Gonzalez never pleaded guilty. He required the district court to

expend additional resources conducting a bench trial. Thus, even

if we were to adopt the reasoning of Kimple, this case would be

distinguishable.

 The district court's consideration at sentencing of

Gonzalez's efforts to put the government to the test by fighting

the essential evidence against him, and his failure to

unconditionally plead guilty, does not impermissibly punish

Gonzalez for exercising his constitutional rights. United States

v. Henry, 883 F.2d 1010, 1011 (11th Cir.1989) ("Section 3E1.1 may

well affect how criminal defendants choose to exercise their

constitutional rights. But "not every burden on the exercise of a

constitutional right and not every encouragement to waive such a

right is invalid.' " (quoting Corbitt v. New Jersey, 439 U.S. 212,

219, 99 S.Ct. 492, 493-97, 58 L.Ed.2d 466 (1978))). It was not

clear error for the district court to refuse to afford Gonzalez an

acceptance of responsibility sentencing reduction.

III. Conclusion

Gonzalez's conviction and sentence is AFFIRMED.