* This order and judgment is not binding precedent, e xcept under the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

### NOV 24 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. ALLEN WAYNE GILMORE,

Defendant-Appellant. No. 97-6342 (D.C. No. CR-97-56-T) (W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , BARRETT , and KELLY , 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Defendant appellant Allen Wayne Gilmore pled guiltyto one count of conspiracy to commit offenses against the United St ates and one count of theft of stolen mail. Defendant was sentenced to a term of twenty-four months’ imprisonment on each count to run concurrently, dir ected to make restitution, and ordered to serve a term of supervised release. On appeal, defendant argues that the district court erred in denying him an adjustme nt to his sentence for acceptance of responsibility. We affirm. Section 3E1.1 of the United States Sentencing Guide lines (Guidelines) allows a district court to reduce a sentence where the defendant clearly demonstrates that he has accepted responsibility fo r his criminal conduct. “The district court has broad discretion to determine wh ether to award a sentence reduction pursuant to §3E1.1 for acceptance of resp onsibility, and we will not disturb its decision absent clearly erroneous findings.” United States v. Bindley , 157 F.3d 1235, 1240 (10th Cir. 1998); see also United States v. Moudy , 132 F.3d 618, 621 (10th Cir. 1998) (holding § 3E1.1 determin ation entitled to great deference on review). The defendant bears the burd en of establishing entitlement to the § 3E1.1 reduction, see United States v. Jaynes , 75 F.3d 1493, 1508 (10th Cir. 1996), which is not automatically granted mere ly because he or she has entered a guilty plea, see United States v. Gacnik , 50 F.3d 848, 853 (10th Cir. 1995).-3-

In denying defendant the requested reduction, the d istrict court noted that, after his arrest and release on bond, defendant was stopped for speeding. When stolen checks related to the instant offense were f ound in the vehicle, defendant denied knowledge of their presence. Defendant also traveled outside the Western District of Oklahoma in violation of his bond conditions, and tested positive for methamphetamine and marijuana, indicating drug use after his release on bond. For these reasons, the district court denied the re duction for acceptance of responsibility. Among the factors suggested for consideration by a sentencing court in deciding whether a defendant qualifies for a reduct ion for acceptance of responsibility is whether the defendant has voluntarily terminated or withdrawn from criminal conduct or associations. See Guidelines Manual § 3E1.1 application note 1(b). The weight of authority amo ng the circuits which have considered the question holds that any criminal con duct committed while a defendant is free on bond is relevant in determinin g whether a defendant has accepted responsibility. See United States v. Ceccarani , 98 F.3d 126, 129 (3d Cir. 1996) (collecting cases); but see United States v. Morrison , 983 F.2d 730, 735 (6th Cir. 1993) (holding that acceptance of respons ibility considers only conduct related to the charged offense). This circuit has affirmed the denial of a downward adjustment for acceptance of responsibility where the defendant-4-

violated his appearance bond, see United States v. Hawley , 93 F.3d 682, 689 (10th Cir. 1996), and where the defendant had attempted escape, see United States v. Amos , 984 F.2d 1067, 1073 (10th Cir. 1993). Based on e vidence of defendant’s conduct while free on bond, we find no error in the district court’s decision to deny defendant a reduction based on acc eptance of responsibility. Defendant argues that the district court erred in n ot performing an evaluation of all of the factors listed in the appl ication notes when making its sentencing decision. We find no authority requirin g the district court to make findings as to each of the suggested factors contai ned in the notes. As the relevant application note states, “[t]he sentencingjudge is in a unique position to evaluate a defendant’s acceptance of responsibility . For this reason, the determination of the sentencing judge is entitled t o great deference on review.” Guidelines Manual § 3E1.1 application note 5. Giv en this deferential standard and the fact that the Guideline factors are suggest ive only, we will not require a sentencing judge to make findings regarding each fa ctor listed in the application notes to § 3E1.1.-5-

The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit Judge