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

### FEB 18 2000 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. BRIAN C. PRINCE,

Defendant-Appellant. No. 99-3081

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. No. 98-CR-20005)

Submitted on the briefs: Jackie N. Williams, United States Attorney and Leo n Patton, Assistant U.S. Attorney, Kansas City, Kansas, for Plaintiffs-Appel lees. Michael G. Katz, Federal Public Defender, James P. Moran, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Ap pellant.

Before EBEL , KELLY , and BRISCOE , Circuit Judges.

KELLY , Circuit Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. -2- Defendant was indicted on one count of bank robberyin violation of 18 U.S.C. § 2113(a). He entered into a plea agreem ent with the United States, agreeing to plead guilty to the offense. In exchan ge, the government agreed that it would not oppose a three-level reduction in the applicable offense level under the United States Sentencing Guidelines (guidelines ) for acceptance of responsibility and that it would not take any posit ion on the sentence to be imposed within the applicable guideline range. The district court declined to apply the three-level reduction for acceptance of r esponsibility. Defendant now appeals his sentence, arguing that the government b reached the plea agreement and that the district court erred in not crediting him with a reduction in his offense level for acceptance of responsibility. 1 We review de novo defendant’s assertion that the government violatedthe plea agreement. See United States v. Cooper , 70 F.3d 563, 565 (10th Cir. 1995). The district court’s denial of the adjustment for a cceptance of responsibility is entitled to great deference and will not be disturb ed unless it is without foundation. See United States v. Amos , 984 F.2d 1067, 1071-72 (10th Cir. 1993). Application of the guidelines to the facts is a que stion of fact that we review for-3-

clear error. See id. at 1072. However, “[p]ure questions of interpretat ion of the sentencing guidelines, which are closely analogous to questions of statutory interpretation, are questions of law,” which we rev iew de novo

. Id. Guided by these standards, we affirm. While defendant was in custody awaiting sentencing, the government received FBI reports indicating that defendant stab bed another prisoner. The government passed the reports on to the probation d epartment, and the probation officer included the information in his presentence investigation report. The probation officer recommended in the report that de fendant not receive the reduction for acceptance of responsibility because defendant’s actions were inconsistent with a “voluntary termination or withd rawal from criminal conduct.” USSG § 3E1.1, comment (n.1(b)). Defendant first argues that the government violated the plea agreement by providing the probation department with the FBI rep orts of defendant’s criminal conduct that occurred while he awaited sentencing. The government agreed not to oppose a reduction in offense level for acceptance of responsibility. The presentence investigation report prepared by the pr obation department reflected the government’s lack of opposition to the reductio n, and the government did not actively oppose, or otherwise comment on, the reduc tion at the sentencing hearing. Cf. United States v. Hawley , 93 F.3d 682, 692-93 (10th Cir. 1996)-4-

(holding that government accomplished through indir ect means what it promised not to do directly when prosecutor qualified its la ck of opposition through comments at sentencing). The plea agreement must be construed according to w hat defendant reasonably understood at the time he made the agree ment. See United States v. Jimenez , 928 F.2d 356, 363 (10th Cir. 1991) (government may inform the court of relevant conduct occurring subsequent to the plea a greement without violating plea agreement provisions concerning a sentencing r ecommendation). The agreement cannot be reasonably interpreted as prohi biting the government from informing the sentencing court of conduct relevant to sentencing. “In fact, the prosecutor has an ethical duty to disclose such inf ormation which, in this case, postdated the parties’ plea agreement.” Id. ; see also United States v. Hand, 913 F.2d 854, 856 & n.3 (10th Cir. 1990) (contrasting c ases where prosecutor argued opposite position of that agreed upon in plea agree ment and holding that prosecutor’s cross-examination was not breach of pl ea agreement, but rather fulfilled prosecutor’s responsibility to inform the court “so that its decision would not be tainted by incomplete and inaccurate information”). It is not a reasonable interpretation of the plea agreement to “require th e judge to sentence in the dark.” Jimenez , 928 F.2d at 363 (further quotation omitted)

. The government did not-5-

violate the plea agreement by supplying the probati on department with the reports of defendant’s post-plea agreement criminal conduct

. See id. at 363-64. Defendant also argues that the district court erred in denying the acceptance of responsibility reduction based on the reports th at he stabbed a fellow prisoner because that criminal activity was unrelated to the criminal conduct for which he was convicted. The guidelines state that voluntarywithdrawal from criminal conduct is a relevant consideration in deciding whe ther to grant a reduction for acceptance of responsibility. See USSG § 3E1.1, comment (n.1(b)). The guidelines do not, however, qualify that factor to permit consideration of only criminal conduct related to or of the same nature a s the offense of conviction. The majority of circuit courts that have addressed the issue have held that, in deciding whether to grant a reduction for accept ance of responsibility pursuant to § 3E1.1, a sentencing court is entitled to consi der whether a defendant has voluntarily withdrawn from criminal conduct, regard less of whether the conduct is similar or related to the criminal conduct for whic h a defendant was convicted. See United States v. O’Neil , 936 F.2d 599, 600-01 (1st Cir. 1991); United States v. Ceccarini , 98 F.3d 126, 130-31 (3d Cir. 1996); United States v. Watkins , 911 F.2d 983, 984-85 (5th Cir. 1990); United States v. McDonald, 22 F.3d 139, 144 (7th Cir. 1994); United States v. Byrd, 76 F.3d 194, 197 (8th Cir. 1996); United States v. Pace , 17 F.3d 341, 343 (11th Cir. 1994); but see United States v.-6-

Morrison , 983 F.2d 730, 735 (6th Cir. 1993). We join the m ajority of circuits and hold that the guidelines do not prohibit a sentenci ng court from considering, in its discretion, criminal conduct unrelated to the offen se of conviction in determining whether a defendant qualifies for an adjustment foracceptance of responsibility under § 3E1.1. Consequently, the district court’s denial of an adjustment for acceptance of responsibility based on reports of de fendant’s criminal conduct in prison while awaiting sentencing was not legal erro r. Finally, defendant has the burden to show he is ent itled to an adjustment for acceptance of responsibility. See Amos , 984 F.2d at 1073. We agree with the district court that defendant did not meet his burd en. Defendant objected to inclusion in the presentence investigation report o f the information contained in the FBI reports on the basis that he had not been “ charged or found guilty of the unlawful conduct alleged by the report.” R. Vol. I , Tab 50 at 1. Defendant did not, however, dispute or offer any evidence againstthe fact or accuracy of the witness accounts. The district court’s decision no t to grant the adjustment because defendant had not met his burden was not cl ear error. The judgment of the district court is AFFIRMED.