F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 23 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 97-6357
v.
(D.C. No. 97-CR-54-T)
(W. D. Okla.)
BILL DAYMOND BAILEY,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL and MURPHY, Circuit Judges.
Bill Daymond Bailey (“Bailey”) pleaded guilty to possessing counterfeit
Federal Reserve notes, in violation of 18 U.S.C. § 474, and possessing cocaine
with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). (R. I #110 at 1.)
He was sentenced to 240 months’ imprisonment. (Id.) He appeals his sentence,
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
contending that the district court erroneously denied him a three-level reduction
for acceptance of responsibility. See U.S.S.G. § 3E1.1.
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 cmt. n.5. It is the
defendant’s burden to prove he has accepted responsibility. See United States v.
Spedalieri, 910 F.2d 707, 712 (10th Cir. 1990).
The district court’s determination that Bailey had not accepted
responsibility is not clearly erroneous. The commentary to U.S.S.G. § 3E1.1
makes it clear that conduct constituting an obstruction of justice “ordinarily
indicates that the defendant has not accepted responsibility for his criminal
conduct.” U.S.S.G. § 3E1.1 cmt. n.4. The district court found that Bailey had
obstructed justice in a number of ways, but because of Bailey’s career offender
status it did not assess an enhancement for obstruction of justice under U.S.S.G. §
3C1.1. Specifically, the court found that Bailey had suborned perjury during a
preliminary hearing, attempted to persuade a co-defendant to take responsibility
for Bailey’s crimes, solicited the co-defendant to threaten or harm a government
witness, and produced a false affidavit in which the co-defendant “confessed” to
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kidnapping the witness and destroying evidence. (R. I #122 at 3-4; R. IV at 100-
01.) These activities are valid examples of obstruction of justice. See U.S.S.G.
§ 3C1.1 cmt. n.3 (listing examples of obstructive conduct); United States v.
Fetherolf, 21 F.3d 998, 1000 (10th Cir. 1994); United States v. Hernandez, 967
F.2d 456, 459 (10th Cir. 1992).
Bailey argues that despite the general rule, the Guidelines leave open the
possibility of an “extraordinary case” where a defendant who has obstructed
justice may also receive a reduction for acceptance of responsibility. See
U.S.S.G. § 3E1.1 cmt. n.4. We do not believe the district court erred in
concluding that this is not such an “extraordinary case.”
Bailey contends that all of the conduct that the district court identified as
obstructing justice occurred before he entered his guilty plea, and that when he
entered his plea he had ceased his obstructive conduct and accepted responsibility
for his crimes. See United States v. Hopper, 27 F.3d 378, 383 (9th Cir. 1994)
(acceptance of responsibility not inconsistent with obstruction of justice “when a
defendant, although initially attempting to conceal the crime, eventually accepts
responsibility for the crime and abandons all attempts to obstruct justice”).
However, the fact that Bailey had ceased his obstructive conduct by the time he
pleaded guilty does not necessarily make this the “extraordinary case” deserving
of the reduction. See Hawley, 93 F.3d at 689-90 (denying reduction where
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defendant fled jurisdiction before being returned involuntarily and pleading
guilty); United States v. Tovar, 27 F.3d 497, 499 (10th Cir. 1994) (denying
reduction where defendant misrepresented his age in motion to dismiss indictment
but later pleaded guilty); Hernandez, 967 F.2d at 459 (denying reduction where
defendant attempted to influence testimony of witness and pleaded guilty); see
also United States v. Woods, No. 95-6259 (10th Cir. June 11, 1996) (unpublished
Order & Judgment) (denying reduction where defendant threatened witnesses two
years before indictment and where district court determined that defendant
“accepted responsibility” only when his other options failed).
The district court did not clearly err in determining Bailey did not accept
responsibility. Consequently, we AFFIRM Bailey’s sentence.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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