* This order and judgment is not binding precedent, e xcept under the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

### FEB 6 2002 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. JAVIER ENRIQUE BARRIENTOS-SOLIS,

Defendant-Appellant. No. 01-2062 (D.C. No. CR-00-543-LH) (D. N.M.)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, PORFILIO , Circuit Judge, and BRORBY , Senior Circuit Judge.

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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Defendant Javier Barrientos-Solis appeals his ninety-two month sentence, imposed after a jury convicted him of violating 8 U .S.C. § 1326(a), (b)(2) (illegal reentry into the United States after arrest and dep ortation, and after having been convicted of an aggravated felony without reapplyin g for admission and without the consent of the Attorney General). On appeal, Mr. Barrientos-Solis argues that he was entitled to a three-level reduction from his base offense level for acceptanc e of responsibility, pursuant to § 3E1.1 of the United States Sentencing Guidelines. Under § 3E1.1(a), “[i]f the defendant clearly demonstrates acceptance of respon sibility for his offense,” the district court shall “decrease the offense level by2 levels.” Additionally, if the defendant qualifies for a reduction under subsectio n (a), and the offense level before that reduction is level sixteen or greater, “and the defendant . . . timely provid[es] complete information to the government c oncerning his own involvement in the offense,” the court shall “decre ase [the offense level] by 1 additional level.” USSG § 3E1.1(b). Acceptance of responsibility involves “truthfully a dmitting the conduct comprising the offense(s) of conviction.” Id ., cmt. n.1(a). Conviction by trial “does not automatically preclude a defendant from c onsideration for such a reduction.” Id. , cmt. n.2. “In rare situations a defendant may cl early demonstrate an acceptance of responsibility for his criminal co nduct even though he exercises-3-

his constitutional right to a trial:” for example, he may go “to trial to assert and preserve issues that do not relate to factual guilt.” Id. ; see also United States v. Garcia , 182 F.3d 1165, 1172 (10th Cir. 1999). Here, Mr. Barrientos-Solis claims he was entitled t o the full three-point reduction because he had accepted responsibility ina pre-trial statement. Because defendant did not seek the § 3E1.1 reduction and di d not object to the district court’s failure to grant it sua sponte, our review is for plain error. United States
v. Jones , 80 F.3d 436, 438 (10th Cir. 1996). Under the pla in error rule, a defendant must show clear or obvious error affect ing his substantial rights, and seriously affecting the integrity of the judicial proceedings. Id. According to the Presentence Report (PSR), Mr. Barr ientos-Solis submitted a statement to the probation office in which he adm itted that he was not from the United States and that he was in the country illega lly. The probation officer authoring the PSR considered this account “a comple te statement accepting responsibility.” See R. Vol. II, at 4. On the other hand, Mr. Barrient os-Solis put the government to its burden of proof by denying th e essential factual elements of his guilt and proceeding to trial. “Pleading not guilty and requiring the government to prove guilt at trial demonstrate deni al of responsibility, regardless of how easily the government can prove guilt.” United States v. PortilloValenzuela , 20 F.3d 393, 394-95 (10th Cir. 1994).-4-

At the very least, Mr. Barrientos-Solis’ inconsist ent pre-trial and trial conduct required factual findings on the issue of whether he clearly accepted responsibility for his offense. See United States v. Gauvin , 173 F.3d 798, 805 (10th Cir. 1999) (stating that the “determination o f acceptance of responsibility is a question of fact”). Defendant’s failure to rais e the issue earlier, however, deprived the district court of the opportunity to m ake the essential factual findings. Under these circumstances, we conclude that the district court did not commit plain error in sentencing Mr. Barrientos-Sol is. The judgment of the district court is AFFIRMED.

Entered for the Court

Wade Brorby Senior Circuit Judge