* This order and judgment is not binding precedent, e xcept under the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

### NOV 29 2000 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MARK A. POPE,

Defendant-Appellant. No. 00-3074 (D.C. No. 99-CR-40049) (D. Kan.)

ORDER AND JUDGMENT *

Before TACHA , McKAY , and ANDERSON , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Defendant-appellant Mark A. Pope entered a guilty p lea to the charge of criminal sexual abuse of a minor, in violation of 1 8 U.S.C. § 2243(a). He was2--

sentenced to twenty-four months’ imprisonment, thre e years’ supervised release, and ordered to pay an assessment of $100. Mr. Pope appeals the sentence imposed, arguing that the district court erred by d enying a reduction for acceptance of responsibility and by refusing a downward departure. We affirm. Mr. Pope’s guilty plea was based on his admission that he had engaged in a sexual act with a person under the age of sixteen y ears. The district court initially indicated it intended to impose a thirty-month sent ence, but upon being informed of the government’s agreement not to oppose a sente nce at the low end of the guidelines, instead imposed a twenty-four-month sentence. The court rejected Mr. Pope’s requests for a reduction for acceptance of responsibility and a downward departure. Our review of the district court’s application of the Sentencing Guidelines is de novo. United States v. Burridge , 191 F.3d 1297, 1301 (10th Cir. 1999). We review for clear error the district court’s underly ing fact findings and its denial of a reduction for acceptance of responsibility. Unit ed States v. McAlpine , 32 F.3d 484, 488, 489 (10th Cir. 1994). “[T]he defendant b ears the burden of proving [he] is entitled to a reduction under [USSG] § 3E1. 1.” United States v. Gallegos , 129 F.3d 1140, 1146 (10th Cir. 1997). Mr. Pope argues that because he stated that he did not blame the victim and he admitted his criminal acts, he was entitled to areduction for acceptance of-3-

responsibility under § 3E1.1. He stated that the v ictim told him she was sixteen years old, going on seventeen, but he “didn’t reall y know” her age or the circumstances that would have alerted him that she was younger than sixteen. Appellant’s App., at 13. Mr. Pope stated that the victim had called him and invited him to her home, suggesting that the sexual act occurred because the victim had initiated it. The district court found that Mr. Pope attempted to excuse his illegal actions and that he was unwilling to ad mit to his culpability. Id. at 45. Upon review of the record, we conclude that Mr. Pop e has not met his burden to establish that the district court’s decision to ref use an adjustment for acceptance of responsibility was clearly erroneous. Turning to Mr. Pope’s appeal of the denial of a dow nward departure, we do not have jurisdiction to review it. United States v. Saffo , 227 F.3d 1260, 1271 (10th Cir. 2000). The district court did not indic ate a “clear misunderstanding of its discretion to depart, or [impose] a sentence wh ich violates the law or incorrectly applies the guidelines.” Id. (quotation omitted). The judgment of the United States District Court fo r the District of Kansas is AFFIRMED. Entered for the Court
Monroe G. McKay Circuit Judge