*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this 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. Therefore, the case is

ordered submitted without oral argument.

Ana Alvarez appeals her sentence of thirty-seven months’ imprisonment

which was imposed after she pleaded guilty to two counts of submitting false
1

 If Alvarez had given her correct name and social security number, the

agents would have determined there was an outstanding 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 grant 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 returns electronically, contacted

Internal Revenue Service in April 1993 after it received numerous diskettes for

electronic filings containing similar wage and earnings information for different

people with common addresses. IRS agents began surveillance of a mailbox drop

location in Oklahoma City and, on April 13, 1993, observed Alvarez and her

mother pick up mail, which included IRS tax refund checks, from the box. IRS

agents subsequently observed Alvarez and her mother pick 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 agents 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 with agents as she had agreed

and she fled the State of Oklahoma.

Alvarez and her mother were apprehended in New Mexico in the summer of
2

 Section 3E1.1 provides, in pertinent part: “If the defendant clearly

demonstrates acceptance of responsibility for his offense, 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, California, but she evaded arrest

by speeding away in her car.

Alvarez was finally arrested in Portland, Oregon, in August 1997. She had

been living in Portland under an assumed name and teaching in the public

schools. She again identified herself by a fictitious name when she was arrested

and she produced a fake identification card. She was taken into custody and

ultimately returned to the State of Oklahoma to face 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 refusing 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 upon returning to

Oklahoma after her arrest, i.e., “her debriefing, her agreement to enter a plea

agreement, [and] her agreement to testify against her mother,” demonstrated her

acceptance of responsibility. Sentencing Transcript at 74. The district court
-4-

rejected her arguments:

Well, I just find it very inappropriate to give a defendant 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 strikes 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 evaluate 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 commencement of trial

combined with truthfully admitting the conduct comprising the

offense of conviction, and truthfully admitting or not falsely denying

any additional relevant conduct for which he is accountable under §

1B1.3 (Relevant Conduct) . . ., will constitute significant evidence of

acceptance of responsibility for the purposes of subsection (a). 

However, this evidence may be outweighed by conduct of the

defendant that is inconsistent with such acceptance of responsibility. 

A defendant who enters a guilty plea is not entitled 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 not persuaded that the

district court committed clear error in refusing a downward adjustment for

acceptance of responsibility. It is true that Alvarez pleaded guilty and truthfully

admitted her conduct. However, it is likewise uncontroverted that Alvarez

intentionally lied to investigating IRS agents, successfully evaded arrest for a

period of approximately four years, and continued her 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 defendant voluntarily terminated

criminal conduct and surrendered to authorities promptly after commission of the

offense, and the timeliness of conduct in manifesting the acceptance of

responsibility). Considered together, we agree with the district court that Alvarez

failed to clearly demonstrate acceptance of responsibility for her conduct.

AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge