F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 8 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 98-3315
DONALD KENARD DAVIS,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D. Ct. No. 92-CR-40037-2)
Submitted on the briefs: *
Jeannine D. Herron, Topeka, Kansas, for Defendant-Appellant.
Jackie N. Williams, United States Attorney, and T.G. Luedke, Assistant United
States Attorney, Topeka, Kansas, for Plaintiff-Appellee.
Before TACHA , McKAY , and MURPHY , Circuit Judges.
TACHA , Circuit Judge.
*
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
On December 4, 1992, a jury found defendant Donald Kenard Davis guilty
of five drug and firearm offenses. The district court sentenced Davis to 240
months imprisonment. On April 24, 1996, the district court vacated Davis’
firearm convictions. The government subsequently moved to have defendant
resentenced to reflect firearm enhancements under United States Sentencing
Guideline (“U.S.S.G.”) § 2D1.1(b)(1). The district court denied the motion on
August 26, 1997, finding that it lacked jurisdiction. We reversed the district court
on the issue of jurisdiction and remanded the case for resentencing. See United
States v. Davis , 153 F.3d 728, 1998 WL 440462 (10th Cir. July 17, 1998)
(unpublished). On remand, the district court denied defendant’s request for a
base offense level reduction for acceptance of responsibility under U.S.S.G. §
3E1.1 and sentenced him to 210 months imprisonment. Defendant appeals the
sentence imposed by the district court, arguing that the district court committed
error by denying him the § 3E1.1 downward adjustment. We affirm.
We review the district court’s interpretation of the Sentencing Guidelines
de novo and its factual findings for clear error. See United States v. Flores , 149
F.3d 1272, 1279 (10th Cir. 1998), cert. denied , 119 S. Ct. 849 (1999). We give
due deference to the district court’s application of the Guidelines to the facts.
See United States v. Vaziri , 164 F.3d 556, 568 (10th Cir. 1999); United States v.
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Smith , 131 F.3d 1392, 1399 (10th Cir. 1997), cert. denied , 118 S. Ct. 1109, 1321,
1543 (1998).
Davis concedes that he was not entitled to a reduction pursuant to U.S.S.G.
§ 3E1.1 when he was initially sentenced in February of 1993. However, he claims
that by the time of his resentencing on remand in October of 1998, he qualified
for an acceptance of responsibility reduction based on his post-sentencing
conduct, namely, his rehabilitative efforts made during his incarceration. We
need not address whether Davis qualified for the § 3E1.1 reduction at the time of
his resentencing because we hold that a defendant may not utilize post-sentencing
contrition to warrant an acceptance of responsibility reduction at resentencing on
remand if he was ineligible for such a reduction at the time his initial sentence
was imposed. See United States v. Warner , 43 F.3d 1335, 1340 (10th Cir. 1994)
(noting that although resentencing on remand is de novo, “events arising after [the
first sentencing] are not within resentencing reach”); see also U.S.S.G. § 3E1.1,
commentary, application note 2 (“This adjustment is not intended to apply to a
defendant who puts the government to its burden of proof at trial by denying the
essential factual elements of guilt, is convicted, and only then admits guilt and
expresses remorse.”). Because defendant concedes his ineligibility for a § 3E1.1
reduction at the time he was originally sentenced and his argument for the
reduction on resentencing rests solely upon post-sentencing conduct, the district
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court did not err by denying his request for a § 3E1.1 reduction. Accordingly, we
AFFIRM the sentence imposed by the district court.
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