United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-2154

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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. *

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Submitted: October 13, 2008

Filed: February 11, 2009

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

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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’ imprisonment. On appeal, he challenges the
1

The Honorable Robert W. Pratt, United States District Judge for the Southern

District of Iowa.

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district court’s1

 denial of a reduction in offense level for acceptance of responsibility

and argues that the district court improperly viewed the Sentencing Guidelines as

mandatory. We affirm.

I.

On October 6, 2007, Juan Rivera-Ordaz, 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 residing in Des Moines, Iowa. During an interview with a

customs officer he also acknowledged that he was 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 reentry. 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 the close of the government’s case. At

sentencing, however, Rivera-Ordaz did admit to wrongdoing.
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II.

Rivera-Ordaz appeals the district court’s denial of a two-level reduction in

offense level under the advisory sentencing 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 the 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] ‘clearly 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 remorse 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 will 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 (8th 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 offense; and, although he did not take the stand

and explicitly deny wrongdoing, 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. 
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Finally, Rivera-Ordaz argues that the district 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 demonstrated” indicates that the district court

impermissibly believed that the sentencing Guidelines were mandatory. This

argument is without merit. The district court was referring only to its interpretation

of the Guidelines, not its ultimate sentencing decision. The record indicates that the

district court fully understood the advisory nature of the Guidelines and considered

all relevant factors in sentencing Rivera-Ordaz to a Guidelines sentence. 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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