* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This order and judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R . 36.3. 

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

### JAN 30 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ROGELIO GUADALUPE-TEJEDA, Defendant - Appellant. No. 02-8022 D.C. No. 01-CR-101-02-B (D. Wyoming)

ORDER AND JUDGMENT *

Before EBEL , LUCERO and HARTZ , Circuit Judges.
Rogelio Guadalupe Tejeda was indicted with several codefendants in a multi-count indictment for conspiracy to distribute more than 500 grams of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) (Count One); possession with intent to distribute m ethamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C) (Count Fi ve); unlawfully distributing- 2 -

methamphetamine, in violation of 21 U.S.C. §§ 841(a )(1) and 841(b)(1)(C) (Count Six); and using a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (Count Seven). He pled not guilty to these charges and was tried before a jury. The jury found the defendant guilty as charged on Counts Five, Six, and Seven, and guilty of conspiracy to traffic in between 50 and 100 grams of methamphetamine, a less er included offense of that charged in Count One. Tejeda appeals his sentence, claiming that the district court should have reduced his offense level under t he United States Sentencing Guidelines by three levels because he accepted resp onsibility for his crime. See U.S.S.G. § 3E1.1. We conclude that the district co urt did not clearly err in refusing to award Tejeda the downward adjustment an d AFFIRM Tejeda’s
sentence. DISCUSSION Under the Sentencing Guidelines, a defendant may re ceive a reduction of up to three offense levels for acceptance of respon sibility if he “clearly demonstrates a recognition and affirmative acceptan ce of personal responsibility for his offense.” U.S.S.G. § 3E1.1. Generally, a reduction in offense level for acceptance of responsibility is not available where a defendant goes to trial and puts the government to its burden of proof by denyi ng the essential factual elements of guilt. Id. , cmt. n.2. In “rare situations,” however, a defen dant may- 3 -

deserve the reduction for acceptance of responsibil ity even though he goes to trial. Id. For example, a defendant may clearly demonstrate acceptance of responsibility but elect to go to trial to “assert and preserve issues that do not relate to factual guilt,” such as challenging the c onstitutionality of a statute or the applicability of a statute to the defendant’s condu ct. Id. ; see also United States v. Portillo-Valenzuela , 20 F.3d 393, 394 (10th Cir. 1994). We will rever se a district court’s finding that the defendant did not accept r esponsibility only upon a showing of clear error. Id. The defendant in this case did provide some cooperation to the authorities. Tejeda was arrested on June 18, 2001, after he sold methamphetamine to a government informant. (ROA VIII at 3.) Following his arrest, Tejeda gave several voluntary statements to the police admittin g that he had been selling methamphetamine for several months. (ROA II, doc. 92 & attach. (police summary of Tejeda’s statements).) In his statement s, he provided the police with the names of some of his customers and admitted to having traded methamphetamine to one of his customers in exchange for a .44 caliber handgun. (ROA VIII at 6.) Tejeda gave the police written co nsent to search his room at the house where he was living so that the handgun could be recovered. (Id. ) He also made for the police a controlled purchase of metham phetamine from his supplier, who subsequently was arrested. (Id. )- 4 -

However, whatever recognition and personal acceptan ce of responsibility Tejeda may have demonstrated by his pre-trial coope ration was undone by his insistence on proceeding to trial on all four count s against him. Tejeda claims that his purpose for going to trial “essentially wa s limited to countering the Government’s efforts to inflate those drug quantiti es to which Tejeda voluntarily confessed—a challenge to the charged drug quantity the Government alleged was associated with charged conspiracy [in Count One].” (Aplt. B. at 19.) But this objective could have been accomplished by pleading guilty to the three counts in the indictment unaffected by his dispute as to the drug quantity involved in the single conspiracy count. Instead, Tejeda formally denied factual guilt as to all the counts with which he was charged by pleading not gu ilty, and he forced the government to bear the burden of a four-day trial at which it had to prove every element of every charge against him. Considering Tejeda’s conduct at trial, we cannot say that the district court clearly erred in concluding that Tejeda had not acc epted responsibility for his crimes. See, e.g. , Portillo-Valenzuela , 20 F.3d at 394 (“Despite PortilloValenzuela’s pretrial confession, the district court did not clearly err by concluding that forcing the government to prove fac tual guilt at trial indicated failure to clearly demonstrate acceptance of respon sibility.”); United States v. Garcia , 987 F.2d 1459, 1461–62 (10th Cir. 1993) (sustaini ng district court’s- 5 -

denial of sentencing reduction because defendant fo rced the government to go to trial on all counts, even though he claimed that he admitted responsibility before trial on all but the one count of which he was acqu itted). “Pleading not guilty and requiring the government to prove guilt at trial de monstrate denial of responsibility, regardless of how easily the govern ment can prove guilt.” PortilloValenzuela , 20 F.3d at 394–95.
CONCLUSION Accordingly, we find that the district court did no t clearly err when it refused to award Tejeda a § 3E1.1 downward adjustme nt for acceptance of responsibility. The sentence is AFFIRMED

. ENTERED FOR THE COURT

David M. Ebel Circuit Judge