* This order and judgment is not binding precedent, except under the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

### OCT 15 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. ANA NAIDA ALVAREZ, a/k/a Mary Rodriguez, Defendant-Appellant. No. 98-6008 (D.C. No. CR-96-53-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument. Ana Alvarez appeals her sentence of thirty-seven mo nths’ imprisonment which was imposed after she pleaded guilty to two c ounts of submitting false1 If Alvarez had given her correct name and social security number, the

agents would have determined there was an outstandi ng warrant for her arrest from the State of Texas. -2- claims for income tax refunds, in violation of 18 U .S.C. §§ 287 and 2(b). She contends the district court erred in refusing to gr ant downward departure for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. Parsons Technology, a computer software company that distributed software enabling individuals to file income tax re turns electronically, contacted Internal Revenue Service in April 1993 after it rec eived numerous diskettes for electronic filings containing similar wage and earn ings information for different people with common addresses. IRS agents began surveillance of a mailbox drop location in Oklahoma City and, on April 13, 1993, o bserved Alvarez and her mother pick up mail, which included IRS tax refund checks, from the box. IRS agents subsequently observed Alvarez and her motherpick up mail from nine other post office boxes and mail drop locations in the Oklahoma City area. When Alvarez was detained and questioned, she gave IRS a gents a false name, social security number, and address, as well as a false explanation for her activities. 1 Alvarez did not appear the following day to meet wi th agents as she had agreed and she fled the State of Oklahoma. Alvarez and her mother were apprehended in New Mexi co in the summer of2 Section 3E1.1 provides, in pertinent part: “If th e defendant clearly

demonstrates acceptance of responsibility for his o ffense, decrease the offense level by 2 levels.” -3- 1993 when they attempted to cash a tax refund check . Alvarez was transported to Harris County, Texas, to begin serving a suspended criminal sentence, but was mistakenly released from custody. On July 24, 1994 , IRS agents attempted to arrest Alvarez at a post office drop in Van Nuys, C alifornia, but she evaded arrest by speeding away in her car. Alvarez was finally arrested in Portland, Oregon, i n August 1997. She had been living in Portland under an assumed name and t eaching in the public schools. She again identified herself by a fictiti ous name when she was arrested and she produced a fake identification card. She w as taken into custody and ultimately returned to the State of Oklahoma to fac e charges. Alvarez pleaded guilty to two of eighteen counts and was sentenced to thirty-seven months’ imprisonment and three-years’ supervised release. Alvarez contends the district court erred in refusi ng to grant her a downward adjustment for acceptance of responsibility pursuant to U.S.S.G. §
3E1.1. 2 At her sentencing, Alvarez argued her conduct upo n returning to Oklahoma after her arrest, i.e., “her debriefing, h er agreement to enter a plea agreement, [and] her agreement to testify against h er mother,” demonstrated her acceptance of responsibility. Sentencing Transcrip t at 74. The district court-4-

rejected her arguments: Well, I just find it very inappropriate to give a d efendant acceptance of responsibility when they spent some significant time as a fugitive and knowing that they were being pursued and lying about who she was, it did impede the investigation, I previously found, and I certainly do give her some credit, and I will, for her plea of guilty and her cooperation after her arrest, but it just s trikes me that it would be inappropriate under that guideline to give her full acceptance of responsibility, so I am going to deny that. Id. Acceptance of responsibility is a factual question which we review for clear
error. See United States v. Hawley , 93 F.3d 682, 689 (10th Cir. 1996). “The sentencing judge is in a unique position to evaluat e a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.” U.S.S.G. § 3E1.1, application note 5. It is defendant’s burden to prove she has accepted responsibility. See United States v. Spedalieri , 910 F.2d 707, 712 (10th Cir. 1990). Application Note 3 speaks directly to Alvarez’ arguments: Entry of a plea of guilty prior to the commencementof trial combined with truthfully admitting the conduct comp rising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which he is acc ountable under § 1B1.3 (Relevant Conduct) . . ., will constitute sig nificant evidence of acceptance of responsibility for the purposes of su bsection (a). However, this evidence may be outweighed by conductof the defendant that is inconsistent with such acceptance of responsibility. A defendant who enters a guilty plea is not entitle d to an adjustment under this section as a matter of right.-5-

U.S.S.G. § 3E1.1(a), application note 3. We have reviewed the record on appeal and we are no t persuaded that the district court committed clear error in refusing a downward adjustment for acceptance of responsibility. It is true that Alva rez pleaded guilty and truthfully admitted her conduct. However, it is likewise unco ntroverted that Alvarez intentionally lied to investigating IRS agents, suc cessfully evaded arrest for a period of approximately four years, and continued h er criminal conduct during most of that time period. See U.S.S.G. § 3E1.1(a), application note 1 (appropriate factors for consideration include whether defendantvoluntarily terminated criminal conduct and surrendered to authorities pro mptly after commission of the offense, and the timeliness of conduct in manifesti ng the acceptance of responsibility). Considered together, we agree wit h the district court that Alvarez failed to clearly demonstrate acceptance of respons ibility for her conduct.
AFFIRMED. Entered for the Court Mary Beck Briscoe Circuit Judge