United States v. Robert Wicktor , 51 F.3d 287 ( 1995 )

51 F.3d 287

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee,
v.
Robert WICKTOR, Defendant-Appellant.

No. 94-4076.

United States Court of Appeals, Tenth Circuit.

March 17, 1995.

ORDER AND JUDGMENT1

Before TACHA, LOGAN and KELLY, Circuit Judges.2

1

Mr. Wicktor appeals the district court's refusal to adjust his sentence downward in accordance with U.S.S.G. 3E1.1. Our jurisdiction arises under 28 U.S.C. 1291 and 18 U.S.C. 3742(a) and we affirm.

2

The parties are familiar with the facts and we will not restate them here. We review the district court's determination of acceptance of responsibility for clear error. United States v. Hoenscheidt, 7 F.3d 1528, 1531 (10th Cir.1993). We will disturb this determination only if it is without foundation. United States v. Amos, 984 F.2d 1067, 1071-72 (10th Cir.1993). In this case, however, the record amply supports the district court's decision to deny the adjustment.

3

Additionally, we reject Mr. Wictor's argument that the district court's application of the 1994 version of the Sentencing Guidelines disadvantaged him so as to violate the Ex Post Facto Clause of Article I of the Constitution. See United States v. Gerber, 24 F.3d 93, 95 (10th Cir.1994). We do not believe that the 1992 deletion of subsection (b) from U.S.S.G. 3E1.1 and the addition of the current Application Note 2 worked a substantive change, since under either the 1994 or 1991 versions, a defendant's going to trial does not preclude a sentencing court from awarding an adjustment for acceptance of responsibility. See United States v. Saucedo, 950 F.2d 1508, 1513-14 (10th Cir.1991); U.S.S.G. 3E1.1 (Nov.1991) and (Nov.1994).

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order. 151 F.R.D. 470 (10th Cir.1993)

2

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. The cause therefore is ordered submitted without oral argument