concurring in part and dissenting in part.
I concur in the majority’s affirmance of Spurlock’s conviction. I dissent, however, from the majority’s conclusion about Spur-lock’s acceptance of responsibility. The district court clearly erred when finding that Spurlock did not clearly demonstrate acceptance of responsibility.
The majority omits a crucial circumstance from its opinion. Contemporaneously with Spurlock’s pre-trial proceedings, two other defendants faced virtually the same charges in the same district (but before a different judge) as Spurlock. See United States v. Helder, 452 F.3d 751 (8th Cir.2006); United States v. Hicks, 457 F.3d 838 (8th Cir.2006). Based on an argument that the statute under which they were charged, 18 U.S.C. § 2422(b), required the presence of an actual minor, rather than an adult pretending to be a minor, the district court granted those defendants’ respective motions for judgment of acquittal after a jury trial, see Helder, 452 F.3d at 753, and dismissal of the indictment, see Hicks, 457 F.3d at 840. Spurlock’s decision to proceed to trial was indisputably motivated by an attempt to preserve for appeal the same legal argument that had worked for similar defendants in the same court.3
The Guidelines specifically anticipate circumstances in which a defendant might require or prefer a trial in order to preserve certain legal issues. Commentary Note 2 to U.S. Sentencing Guidelines Maitoal § 3E1.1 (2004) sets forth:
a defendant may clearly demonstrate acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily on pre-trial statements and conduct.
In this case, Spurlock exercised his right to trial to preserve a challenge to the applicability of 18 U.S.C. § 2242(b) to his conduct. Thus, the court should determine his acceptance of responsibility on his pre-trial statements and conduct.
The PSI report indicates that Spurlock’s pretrial statements and conduct undoubtedly demonstrate his acceptance of responsibility. Following his arrest, Spurlock admitted the wrongfulness of his conduct and confessed to all relevant conduct. Spur-lock also consented to the search of his computer and to officers’ assuming his online presence for further investigation. Throughout his pre-trial proceedings, Spurlock conceded that he had engaged in *1017the wrongful conduct, but maintained that the statute did not apply to his conduct. Spurlock, although requesting a trial, waived his right to a jury trial and stipulated to some of the government’s evidence, including chain of custody of the computer files. At trial, he did not object to the admission of the government’s exhibits and only cross-examined one of three government witnesses.
True, Spurlock put the government to some burdens at trial by his general denial. But the applicable note explains that the “adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial , is convicted, and only then admits guilt and expresses remorse.” U.S. Sentenoing Guidelines Manual § 3E1.1 cmt. n. 2 (2004) (emphasis added). Spurlock did not withhold admission of guilt until the government had met its burden of proof. He had previously admitted his conduct, stipulated to evidence, and conveyed an appreciation for the wrongfulness of his conduct. The acceptance of responsibility reduction cannot become solely a question of how much work the government was required to do; we must ultimately focus on whether the defendant himself exhibited responsibility and remorse for his conduct, which Spur-lock did.
Spurlock faced the special and rare circumstances of seeing two other defendants avoid conviction on similar facts because of a statute’s potential inapplicability. There is little question that Spurlock only went to trial to preserve that issue. Accordingly, I dissent from the majority in this respect and would have vacated Spurlock’s sentence and remanded for re-sentencing with a reduction for acceptance of responsibility-
. Spurlock unsuccessfully argued the issue in his own case.