935 F. 2d 276 - United States v. S Howe

MEMORANDUM**

We consider whether the district court erred in sentencing Robert Howe by denying him a two-point reduction in his offense level for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1. We affirm.

Howe contends the court failed adequately to consider his Crow Indian background in assessing his ability to manifest an acceptance of responsibility.

Guideline Sec. 3E1.1 provides for a two-point reduction "[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." The defendant bears the burden of establishing acceptance of responsibility. United States v. Rosales, 917 F.2d 1220, 1222 (9th Cir.1990). Whether the defendant accepted responsibility is a factual determination reviewed for clear error. United State v. Ramos, 923 F.2d 1346, 1360 (9th Cir.1991).

The court's denial of a reduction was not clearly erroneous. At his change of plea hearing, Howe said he was pleading guilty because the government had enough evidence to convict him. He was asked to provide the probation officer with his version of the crime and failed to do so. The court found that he "waffled" on accepting responsibility and tried to blame his extortions on other tribe members. The court did not err in finding he failed to demonstrate an affirmative acceptance of responsibility. See United States v. Ramos, 923 F.2d at 1360 n. 29 (rejecting argument that reticence due to youth, lack of sophistication and language barrier impaired ability to manifest acceptance of responsibility).

Howe also contends that the court improperly pointed to the counts dismissed under the plea agreement in denying him the reduction. A criminal defendant need not admit culpability for all crimes of which he was accused to be entitled to a reduction for acceptance of responsibility. United States v. Ramos, 923 F.2d at 1360. We do not construe the court's remark as requiring Howe to accept responsibility for other crimes. Because the court's finding that he did not affirmatively accept responsibility for the crime charged was not clearly erroneous, we AFFIRM.