## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-2154

___________ United States of America, *
* Plaintiff - Appellee, * * v. * * Appeal from the United States Juan Carlos Rivera-Ordaz, also known * District Court for the as Juan Carlos Rivera, also known as * Southern District of Iowa. Lazaro Rivera, also known as Jose * Garcia-Martinez, also known as * Ramiro Rivera-Garcia, also known as * Carlos Antonio Rivera, *
* Defendant - Appellant. *

___________ Submitted: October 13, 2008 Filed: February 11, 2009

___________ Before LOKEN, Chief Judge, JOHN R. GIBSON, and MURPHY, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge.

Juan Carlos Rivera-Ordaz was indicted on one count of illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). Rivera-Ordaz was convicted by a jury and sentenced to 41 months’ impr isonment. On appeal, he challenges the1 The Honorable Robert W. Pratt, United States District Judge for the Southern District of Iowa.
-2- district court’s 1 denial of a reduction in offens e level for acceptance of responsibility and argues that the district court imprope rly viewed the Sentencing Guidelines as mandatory. We affirm.

I.

On October 6, 2007, Juan Rivera-Ord az, a Mexican national, was booked into the Polk County, Iowa jail. At the time, Rivera-Ordaz stated that he was born in Mexico and currently residi ng in Des Moines, Iowa. During an interview with a customs officer he also acknowledged that hewas not a United States citizen and had entered the United States illegally. The government filed a one count indictment against Rivera-Ordaz for illegal reentry into the United States.

At trial, the government presented evidence of Rivera-Ordaz’s two prior deportations, including fingerprint evidence confirming Rivera-Ordaz to be the same person listed on the deportation records. The government also presented evidence of a records search that revealed Rivera -Ordaz had not received permission from the United States Government to apply for r eentry. Rivera-Ordaz, through his defense counsel, engaged in cross-examination of all the government’s witnesses, sought exclusion of certain evidence, and argued that the government had failed to meet its burden of proof regarding two elements of the crime charged. Rivera-Ordaz also moved for a judgment of acquittal at th e close of the government’s case. At sentencing, however, Rivera-Ordaz did admit to wrongdoing.-3- II.

Rivera-Ordaz appeals the district cour t’s denial of a two-level reduction in offense level under the advisory se ntencing guidelines for acceptance of responsibility. See USSG § 3E1.1 (2008). “We review a denial of a reduction for acceptance of responsibility for clear error on th e part of the district court.” United States v. Canania , 532 F.3d 764, 772 (8th Cir. 2008). In so doing, we are mindful that the burden is on the defendant“to show that [he] ‘cl early demonstrated’ acceptance of responsibility.” Id. The reduction “is not intended to be applied when a defendant puts the United States to its burden of proof at trial by denying the essential factual elements of guilt, then expresses remo rse upon conviction at jury trial.” Id. (citing USSG § 3E1.1 comment. (n. 2)).

Rivera-Ordaz’s argument centers around whether the denial of his request for a reduction for acceptance of responsibility impermissibly punishes him for exercising his constitutional right to a jury trial. He argues that all other things being equal, his advisory Guidelines recommended sentence w ill be one year longer than if he had pleaded guilty, thus punishing him for exercising his trial rights. Rivera-Ordaz’s argument misses the mark. Even a guilty plea does not guarantee a reduction for acceptance of responsibility. See Canania , 532 F.3d at 772-773. Therefore, although Rivera-Ordaz’s “decision to proceed to trial did not automatically preclude [him] from consideration for this reduction, . . . that decision plus other relevant factors noted by the district court at sentencing were more than sufficient to support the denial of this reduction.” United States v. Petersen , 2009 WL 36826, at * 2 (8 th Cir. Jan. 8, 2009) (internal citations omitted). In particular , Rivera-Ordaz called into doubt the factual elements of the crime both during cross- examination and in closing arguments. He did not stipulate to any elements of the offe nse; and, although he did not take the stand and explicitly deny wron gdoing, the defense was certainly consistent with that of a general denial. Accordingly, the district court did not clearly err in denying RiveraOrdaz a reduction for acceptance of responsibility.-4- Finally, Rivera-Ordaz argues that the di strict court’s statement that it was bound by this circuit’s precedent and the language of § 3E1.1 in determining that acceptance of responsibility must be “clearly demonstr ated” indicates that the district court impermissibly believed that the senten cing Guidelines were mandatory. This argument is without merit. The district court was referring only to its interpretation of the Guidelines, not its u ltimate sentencing decision. Th e record indicates that the district court fully understood the advisory nature of the Guidelines and considered all relevant factors in sentencing Rivera-Ord az to a Guidelines se ntence. The district court did not abuse its discretion.

III.

For the foregoing reasons, we affirm the sentence imposed by the district court.

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