1 The Honorable Rodney W. Si ppel, United States District Judge for the Eastern District of Missouri. 

## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 08-3272

___________ United States of America, *

* Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Horacio Cruz-Zuniga, * * Appellant. *

___________ Submitted: April 15, 2009 Filed: July 1, 2009

___________ Before RILEY, BENTON, and SHEPHERD, Circuit Judges.

___________
RILEY, Circuit Judge.

A jury convicted Horacio Cruz-Zuniga (C ruz-Zuniga) of one count of conspiracy to distribute 500 grams or more of a mixture or substance containing methamphetamine. The district court 1 sentenced Cruz-Zuniga to 480 months imprisonment and a lifetime term of supervised release. Cruz-Zuniga appeals, arguing the district court erred by (1) refusing to gi ve Cruz-Zuniga’s proposed jury instruction regarding co-defendants’ testimony; (2) gi ving the Eighth Circuit’s model instruction-2- on reasonable doubt with the “mere possib ility of innocence” language; (3) sentencing Cruz-Zuniga based on an amount of drugs th at was not charged in the indictment or found beyond a reasonable doubt by the jury; (4) refusing to grant a downward sentencing variance equivalent to a two-level reduction for acceptance of responsibility; and (5) failing to consider all the factors in 18 U.S.C. § 3553(a) and adequately explain the court’s reasoning, improperly comparing Cruz-Zuniga to a defendant in a previous case, and imposi ng an unreasonable sentence. We affirm.

I. BACKGROUND A law enforcement investigation led to Cruz-Zuniga’s indictment on one count of conspiracy to distribute 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C . §§ 841(a)(1) and 846. Cruz-Zuniga pled not guilty.

Three of the participants in the me thamphetamine conspiracy agreed to cooperate with the government by testifyi ng at Cruz-Zuniga’s trial. Cruz-Zuniga offered a jury instruction on the credibility of cooperating witnesses. The district court denied Cruz-Zuniga’s instruction and used Eighth Circuit Model Instruction 4.05 to instruct the jury on the credibility of cooperating witnesses. The district court also refused Cruz-Zuniga’s proposed instructi on on reasonable doubt, instead instructing the jury on reasonable doubt as defined in Ei ghth Circuit Model Instruction 3.11. The jury found Cruz-Zuniga guilty.

The Probation Office prepared a presen tence investigation report, which determined the drug quantity attributable to Cruz-Zuniga was more than fifteen kilograms of methamphetamine. After hearing argument at Cruz-Zuniga’s sentencing hearing, the district court agreed more than fifteen kilograms of methamphetamine were attributable to Cruz-Zuniga.-3- At sentencing, Cruz-Zuniga argued he s hould receive the equivalent of a twolevel decrease in his offense level for acceptance of responsibility, even though CruzZuniga did not accept responsibility. Cruz-Zuni ga contended the deni al of a two-level decrease would punish Cruz-Zuniga for exercising his right to stand trial. The district court rejected this argument.

The district court calculated an offens e level of 43 and a criminal history category of I, resulting in an advisory Un ited States Sentencing Guidelines (Guidelines or U.S.S.G.) range of life imprisonment. In explaining Cruz-Zuniga’s sentence, the district court specifically discussed a numbe r of the sentencing factors in 18 U.S.C. § 3553(a). The district court then imposed a below-Guidelines sentence of 480 months imprisonment and a lifetime term of superv ised release. This appeal followed.

II. DISCUSSION A. Jury Instructions “A defendant is entitled to a specific jury instruction ‘that conveys the substance of his request if his request is timely, it is supported by evidence in the case, and is a correct statement of the law.’ ” United States v. Whitehead , 176 F.3d 1030, 1037 (8th Cir. 1999) (citing United States v. Tucker , 137 F.3d 1016, 1036 (8th Cir. 1998)). However, a defendant “‘is not entitled to a particularly-worded instruction when the instructions actually given by the trial c ourt adequately and correctly cover the substance of the requested instru ction.’” United States v. Long , 977 F.2d 1264, 1272 (8th Cir. 1992) (quoting United States v. Lewis , 718 F.2d 883, 885 (8th Cir. 1983)). “‘The district court has wide discretion in formulating appropriate jury instructions.’” Id. (quoting United States v. McQuarry , 726 F.2d 401, 402 (8th Cir. 1984) (per curiam)). We review the district court’s de nial of a proposed jury instruction for abuse of discretion, reversing “only if the districtcourt’s alleged errone ous failure to give a particular instruction was prejudicial.” Whitehead , 176 F.3d at 1037 (citation omitted).-4- 1. Co-Defendants’ Testimony Cruz-Zuniga contends he was prejudiced by the district court’s use of Eighth Circuit Model Jury Instruction 4.05A (Instruction 4.05A), entitled “Credibility–Cooperating Witne ss,” and the district court abused its discretion by refusing Cruz-Zuniga’s proposed non-pattern instruction on credibility of cooperating witnesses. Cruz-Zuniga specifi cally objects to the district court instructing the jury as follows: “You have heard evidence that R uben Rocha, Javiel Menchaca, and Nestor Menchaca hope to receive a reduced sentence on criminal charges pending against them in return for their cooperation with the Government in this case.” (emphasis added). Cruz-Zuniga claims In struction 4.05A did not fully explain the benefits the codefendants would receive, and asserts the jury should have been instructed: “The agreement in this case may provide [the cooperating witness] with the expectation that he could receive a less severe sentence.” (e mphasis added). Put another way, CruzZuniga claims “the word ‘ expectation ’ more accurately descri bes the mindset” of the cooperating witnesses than the word “ hope .”

Although the words “hope” and “expectati on” may carry distinctive meanings in other contexts, there is no meaningful difference between a cooperating witness who has the “hope” of receiving a reduced sent ence and one who has the “expectation” of receiving a reduced sentence. Indeed, “hope” and “expectation” are generally recognized as synonyms. See William C. Burton, Burton’s Legal Thesaurus 221 (John Drukker, ed., Mc-Graw-Hill 1998 (1980) (listing “hope” as a synonym for “expectation”). Regardless of whether the word “hope” or “expectation” was used to describe the subjective mindsetof cooperating witnesses, Instruction 4.05A adequately and correctly conveyed the substance of Cruz-Zuniga’s request that the jury be informed a cooperating witness’s testimony may be influenced by the possibility of receiving a reduced sentence.-5- Consistent with Instruction 4.05A, the di strict court instructed the jury, “[y]ou may give the testimony of these witnesses such weight as you think they deserve. Whether or not testimony of a witness ma y have been influenced by his hope of receiving a reduced sentence is for you to decide.” Furthermore, Cruz-Zuniga’s counsel had the opportunity to cross-exam ine each cooperating w itness, inquire into his motives for cooperating with the gove rnment, and attempt to discredit his testimony. During closing argument, Cruz -Zuniga’s counsel had sufficient opportunity to persuade the jury the witnesses we re not credible based upon this “hope” or “expectation.” Cruz-Zuniga fails to establish he was prejudiced in any way by the instruction’s use of the word “hope” instead of “expectation.” The district court did not abuse its discretion by using Instruction 4.05A to instruct the jury on the credibility of cooperating witnesses.

2. Reasonable Doubt Cruz-Zuniga next contends the districtcourt abused its discretion by giving Eighth Circuit Model Instruction 3.11 (Instru ction 3.11), which di scusses and defines reasonable doubt. Cruz-Zuniga argues the st atement, “[a] reasonable doubt is a doubt based upon reason and common se nse, and not the mere possibility of innocence,” is prejudicial because it impermissibly shifts the burden of proof to the defendant.

This circuit has repeatedly upheld the use of Instruction 3.11, specifically upholding the “mere possibility of innocen ce” language challenged by Cruz-Zuniga. See United States v. Foster , 344 F.3d 799, 802 (8th Cir. 2003) (citing United States v.
Rosso , 179 F.3d 1102, 1104-05 (8th Cir. 1999)); United States v. Gibson , 105 F.3d 1229, 1233-34 (8th Cir. 1997); see also United States v. Harris , 974 F.2d 84, 85 (8th Cir. 1992). “These cases have established th e law of the circuit on this point.” Foster
, 344 F.3d at 802. Only the court en banc c ould overturn this circuit’s precedent. Id. We therefore conclude the district court di d not abuse its discretion by instructing the jury on the definition of reasonable doubt set forth in Instruction 3.11.-6- B. Drug Quantity Cruz-Zuniga claims the district court erred by applying a two-level sentencing enhancement based on a quantity of drugs (more than fifteen kilograms) that was not charged in the indictment or found by a grand jury. Cruz-Zuniga maintains the district court’s finding the drug quantity by a preponderance of the evidence violates his Fifth and Sixth Amendment rights.

We review de novo constitutional ch allenges, United States v. Bates , 77 F.3d 1101, 1104 (8th Cir. 1996), and the district cour t’s interpretation and application of the advisory Guidelines, United States v. Whiting , 522 F.3d 845, 849 (8th Cir. 2008). After United States v. Booker , 543 U.S. 220 (2005), “judicial factfinding is permissible at sentencing so long as the di strict court understands that the sentencing guidelines are advisory only.” United States v. Brave Thunder , 445 F.3d 1062, 1065 (8th Cir. 2006). Under an advisory sentencing regime, “the district court is entitled to determine sentences based upon judge-found facts and uncharged conduct” where the defendant is “not sentenced in excess of the statut ory maximum.” United States v. Garcia-Gonon
, 433 F.3d 587, 593 (8th Cir. 2006) (c iting United States v. Red Elk , 426 F.3d 948, 951 (8th Cir. 2005)); see also United States v. Okai , 454 F.3d 848, 851 (8th Cir. 2006) (explaining, “after Booker , facts underlying sentencing enhancements that are not used to increase the defendant’s sentence above the congressionally authorized maximum need not be alleged in the indictment to pass constitutional muster” (citations omitted)). “[S]entencing judges are only required to find sentence-enhancing facts by a preponderance of the evidence.” Garcia-Gonon , 433 F.3d at 593 (citing United States v. Pirani , 406 F.3d 543, 551 n.4 (8th Cir. 2005) (en banc)). The district court understood the Guidelines were advisory a nd did not sentence Cr uz-Zuniga above the statutory maximum. We conclude the distri ct court did not err by engaging in judicial factfinding and applying a preponderance of the evidence standard to determine the drug quantity attributable to Cruz-Zuniga.2 Cruz-Zuniga also asserts the districtcourt erred by failing to address his acceptance-of-responsibility argument. On th e contrary, after Cruz-Zuniga’s counsel argued this point extensively at sentencing, the district judge discussed the argument with Cruz-Zuniga’s counsel, made several comments, and indicated he understood the

-7- C. Acceptance of Responsibility Cruz-Zuniga next contends the distri ct court erred by refusing to grant a downward variance equivalent to a two-le vel Guidelines reduction for acceptance of responsibility. Cruz-Zuniga argues denying an acceptance of responsibility credit to a defendant who stands tria l (and who does not accept responsibility) punishes the defendant for exercising his constitutional right to stand trial. We reject this argument.

It is generally permissible to grant le niency to defendants who plead guilty, and to withhold leniency from defe ndants who go to trial. See Corbitt v. New Jersey , 439 U.S. 212, 223 (1978) (explaining courts are en titled to “recognize[] the fact that there ha[s] been a plea and that in sentencing it is constitutionally permissible to take that fact into account . . . it is not forbidden to exte nd a proper degree of leniency in return for guilty pleas.”). Addressing a defendant’s request for a tw o-level Guidelines reduction for acceptance of responsibility, this court has specifically “held that [U.S.S.G. §] 3E1.1 does not punish a defendant for exercising hi s constitutional right to a jury trial.” United States v. Smith , 40 F.3d 933, 935 (8th Cir. 1994) (citing United States v. Young
, 875 F.2d 1357, 1360-61 (8th Cir. 1989)). “Under [§] 3E1.1, an acceptance-ofresponsibility reduction is simply ‘not intende d to apply to a defe ndant who puts the government to its burden of proof at trial by denying factual elements of guilt.’” Id. at 935-36 (quoting U.S.S.G. § 3E1.1 cmt. n.2). Although it is possible in certain circumstances for a defendant to stand trial and still get a reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, application n.2, no such circumstances existed in Cruz-Zuniga’s case. The district court’ s refusal to grant Cruz-Zuniga a downward variance equivalent to a two-level Guide lines reduction for acceptance of responsibility did not wrongfully punish Cruz-Zuniga for ex ercising his constitutional right to stand trial. 2argument. This is more than adequate to satisfy us that the district court fully considered Cruz-Zuniga’s argument. See United States v. Gray , 533 F.3d 942, 944 (8th Cir. 2008) (explaining, “not every reasonable argument advanced by a defendant requires a specific rejoinder by the judge”); see also Rita v. United States , 551 U.S. 338, 127 S. Ct. 2456, 2468-69 (2007).

-8- D. Cruz-Zuniga’s Sentence Finally, Cruz-Zuniga asserts the district c ourt did not specifically apply all of the 18 U.S.C. § 3553(a) sentencing factors to Cruz -Zuniga, did not adequately explain the rationale for the sentence, a nd improperly likened Cruz-Zuniga’s case to that of another drug trafficker the court previously senten ced. Cruz-Zuniga also argues his sentence is substantively unreasonable.

In reviewing a sentence, this court “mus t first ensure that the district court committed no significant procedural error, su ch as failing to calculate (or improperly calculating) the Guidelines range, . . . failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall v. United States , 552 U.S. 38, 128 S. Ct. 586, 597 (2007). If the sentence is procedurally sound, we “then consider the subs tantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id.

Gall sets forth the sentencing procedure th e district court should follow. After correctly calculating the Guidelines range and “giving both parties an opportunity to argue for whatever sentence they deem appropriate, the distri ct judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party.” Id. at 596. The district court “must make an individualized assessment based on the facts presented, . . . [and] must adequately explain the chosen sentence to allow for meaningf ul appellate review.” Id. at 597. “In explaining the chosen sentence and analyzing the relevant § 3553(a) factor s, ‘a district court is not required to provide “a full opinion in every case,” but must “set forth enough to satisfy the appellate court that he has consideredthe parties’ arguments and has a reasoned-9- basis for exercising his own legal decisionmaking authority.”’” United States v. Hill
, 552 F.3d 686, 691 (8th Cir. 2009) (quoting United States v. Robinson , 516 F.3d 716, 718 (8th Cir. 2008) (in turn quoting Rita , 127 S. Ct. at 2468)). The “sentencing court need not ‘categorically rehearse each of the [§] 3553(a) factors on the record when it imposes a sentence as long as it is clear that they were c onsidered.’” United States v.
Jones , 509 F.3d 911, 915 (8th Cir. 2007), cert. denied , 128 S. Ct. 2891 (2008) (mem) (quoting United States v. Dieken , 432 F.3d 906, 909 (8th Cir. 2006)); see also Rita , 127 S. Ct. at 2468-69.

At sentencing, the district court expressl y considered a number of the relevant § 3553(a) factors and explained how each fact or weighed for or against Cruz-Zuniga. Addressing the “nature and circumstances of the offense” under § 3553(a)(1), the district court discussed the “scourge thatmethamphetamine has on our community” and the fact Cruz-Zuniga “imported kilograms of methamphetamine into our community.” The district court also explai ned, “[t]he history and charact eristics of the defendant are highly unusual in that he has no prior criminal history, but that’s not the determining factor here.” In order “[t] o protect the public,” the district court declared Cruz-Zuniga would receive “a substantial sentence, but if he ever gets out we know that he will be deported from this country.” The district court’s explanation for the sentence imposed and express consideration of several of the § 3553(a) f actors in no way constitutes significant procedural error.

Cruz-Zuniga takes issue with the district court’s statement it was imposing a sentence of 480 months imprisonment, a downward variance from Cruz-Zuniga’s Guidelines range of life imprisonment, becau se the district court likened Cruz-Zuniga to “a substantial heroin dealer” the court previously sentenced to 420 months imprisonment. Cruz-Zuniga does not assert the district court erred by comparing CruzZuniga to a previous defendant, but merely complains the district court should have given Cruz-Zuniga an even more drama tic downward variance because the heroin dealer was involved with weapons and violen ce, and Cruz-Zuniga was not. The district-10- court was entitled to consider “the need to avoid unwarranted sentence disparities among defendants with similar records w ho have been found guilty of similar conduct[.]” 18 U.S.C. § 3553(a)(6). We see no basis to conclude th e district court’s comparison was in any way improper or an abuse of discretion.

Further, “giv[ing] due deference to the district court’s decision that the § 3553(a) factors, on a whole,” justify Cruz-Zuniga’s sentence, Gall , 128 S. Ct. at 597, our review of Cruz-Zuniga’s sentence reveals no ba sis for concluding Cruz-Zuniga’s belowGuidelines sentence is substantively unreasonable.

III. CONCLUSION We affirm the sentence and judgment of the district court.

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