United States v. James ( 2000 )


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  •                                                                                F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    FEB 7 2000
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    ____________
    UNITED STATES OF AMERICA,            )
    )
    Plaintiff-Appellee,          )
    )
    v.                               )                         No. 98-1479
    )                         (D.C. No. 98-CR-168-M)
    TORRENCE KEITH JAMES,                )                         (D. Colo.)
    )
    Defendant-Appellant.         )
    ____________
    ORDER AND JUDGMENT*
    _____________
    Before BALDOCK, BRISCOE, Circuit Judges, and CROW, District Judge.**
    _____________
    Torrence Keith James appeals his convictions on four counts of distributing
    *
    This order and judgment is not binding precedent, except under the doctrines of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
    citations of orders and judgments; nevertheless, an order and judgment may be cited
    under the terms and conditions of 10th Cir. R. 36.3.
    The Honorable Sam A. Crow, Senior United States District Judge for the District
    **
    of Kansas, sitting by designation.
    crack cocaine in violation of 
    21 U.S.C. § 841
    ,1 arguing that the district court
    impermissibly struck on its own motion one prospective juror during voir dire and
    then improperly instructed the jury regarding their obligation to follow the law as
    imparted by the court. James contends that these errors deprived him of his right
    to a fair trial. The defendant also appeals the four sixty-five month concurrent
    sentences imposed by the district court on each count of conviction. The
    defendant contends that the district court erred when it denied his request for a
    “downward departure” for acceptance of responsibility pursuant to United States
    Sentencing Guidelines § 3E1.1 and that the district court denied his request for
    allocution prior to the imposition of sentence. This court exercises jurisdiction
    pursuant to 
    28 U.S.C. § 1291
     and affirms.
    I.    Challenges to the District Court Sua Sponte Striking a Prospective Juror and
    the District Court’s Instructions to the Jury
    During voir dire, the district court sua sponte excused prospective juror
    William A. Altonin, a professor emeritus from Denver University. On appeal, the
    defendant argues that the district court committed reversible error when it sua
    1
    At trial, the government introduced evidence of controlled buys from the
    defendant. The telephone conversations arranging the controlled buys from James were
    tape recorded. Law enforcement officers took photographs of James as he sold crack
    cocaine to a cooperating witness. The cooperating witness who actually purchased the
    crack cocaine from James testified at trial. In this appeal, the defendant does not
    challenge the sufficiency of the evidence.
    -2-
    sponte struck prospective juror Altonin from the venire. Concomitant with his
    challenge to striking Altonin, the defendant argues that the district court
    incorrectly informed the jurors that it is their duty to follow the law as it
    instructed. The defendant contends that this admonition was a structural error
    mandating reversal. The defendant argues that the jury always has the power to
    acquit and that the district court’s instructions trampled on the independence of the
    jury, making it impossible for the jury to render a fair decision in this case.
    The government responds, arguing that the district court’s decision to strike
    Altonin as a prospective juror was entirely appropriate under the circumstances
    and that the district court’s instructions regarding the jury’s duty to follow the law
    as given to it by the court were absolutely correct.
    Factual Summary
    After discussing the nature of the case and many of the fundamental
    principles of criminal law--the presumption of innocence, the jury’s duty to
    consider only the evidence admitted and the government’s burden of proof--with
    the entire jury panel, the district court directed its questions to a prospective juror
    named John S. Cowan, an attorney and solo practitioner. In response to the
    district court’s inquiry, Cowan explained the nature of his civil and criminal
    practice. The district court then posited the following question: [C]ould we agree
    -3-
    on this, although you’re an experienced trial lawyer, when it comes time for me to
    give the instructions in the case and I instruct the jury, you’re ready to accept my
    view of the law as given in the instructions, even though, if it should, may conflict
    with your view?” Cowan responded “Yes.” (Rec. vol. 3, 35). The following is an
    excerpt of the voir dire of prospective juror Altonin that immediately followed:
    THE COURT:          Okay. Are any others of you lawyers? Mr. Altonin?
    MR. ALTONIN: Yes. I taught criminal law at D.U. about 25 times. I’m
    not a lawyer--
    THE COURT:          But you’ve taught law?
    MR. ALTONIN: Yes.
    THE COURT:          And are you teaching now?
    MR. ALTONIN: No, I’m a professor emeritus for D.U.
    THE COURT:          And when was it that you taught criminal law?
    MR. ALTONIN: From 1966 until I think 1987.
    THE COURT:          So when you say 25 times, you mean 25 periods,
    academic periods?
    MR. ALTONIN: Sometimes I taught more than once a year.
    THE COURT:          Yeah. And includes a procedure course?
    MR. ALTONIN: No, I did not teach procedure.
    -4-
    THE COURT:       Would you be--were you teaching common law, criminal
    law?
    MR. ALTONIN: We relied heavily on codes.
    THE COURT:       And particularly Colorado?
    MR. ALTONIN: No.
    THE COURT:       Federal?
    MR. ALTONIN: Largely, the model penal code.
    THE COURT:       Okay, Well, I’ll have to ask you the same question I
    asked our practicing attorney, whether you’re willing to
    accept the law from me as I give it in instructions?
    MR. ALTONIN: I don’t know.
    THE COURT:       And why do you say that?
    MR. ALTONIN: Something may come up that I’d feel very strongly
    about.
    THE COURT:       Like what?
    MR. ALTONIN: I can’t imagine now.
    THE COURT:       Well, you know it’s your duty--
    MR. ALTONIN: My inclination is to follow the judge’s instructions.
    THE COURT:       Which of course is what the duty of a juror is.
    -5-
    MR. ALTONIN: Yes. I’ve got one qualm there.
    THE COURT:          Which is?
    MR. ALTONIN: That a jury always has the power to acquit.
    THE COURT:          Well, that’s right.
    MR. ALTONIN: Not withstanding the evidence.
    THE COURT:          Well, the jury, in your view, can take the law unto itself?
    MR. ALTONIN: Yes, for the purpose of acquittal in a criminal case.
    THE COURT:          I’m going to excuse you. You’re excused.
    (Rec. vol. 3, 35-37).
    Neither the defendant nor the Government lodged any objection of
    any kind regarding the dismissal of prospective juror Altonin. The district court
    then provided the following explanation for removing Mr. Altonin as a
    prospective juror:
    Now, we were on the subject of experience with the law. I just excused the
    professor because he expressed a view that the jury can disregard the law.
    I'm surprised to hear that's being taught, if it is being taught. But at any rate,
    that's not the law. As I have explained patiently and carefully, the jury has
    to accept the law as it is, and it's up to the jury to decide on the evidence,
    you know, whether the evidence meets this high standard of proof, and can
    certainly decide on an acquittal, as he said, if the evidence doesn't persuade
    or convince you beyond a reasonable doubt. But the jury can't make up the
    law, and that's the little exchange that we had there, and I'm sure you
    followed along with that, but I wanted to make it plain why it was that I
    excused this teacher.
    -6-
    (Rec. vol. 3, 38). No objection to this explanation for striking Altonin and these
    instructions regarding the jury’s obligation to follow the law was advanced by
    either party.
    Standard of Review
    “It is well settled that the district court has broad discretion in
    determining how to handle allegations of juror bias.” United States v. Bornfield,
    
    145 F.3d 1123
    , 1132 (10th Cir. 1998), cert. denied, 
    2000 WL 48814
     (2000). "'The
    trial judge is vested with a wide discretion for determining the competency of
    jurors and his judgment will not be interfered with except in the case of an abuse
    of discretion.'" United States v. Contreras, 
    108 F.3d 1255
    , 1265 (10th Cir.)
    (quoting United States v. Porth, 
    426 F.2d 519
    , 523 (10th Cir.) (internal quotation
    marks omitted), cert. denied, 
    400 U.S. 824
    , 
    91 S. Ct. 47
    , 
    27 L. Ed. 2d 53
     (1970)),
    cert. denied, 
    522 U.S. 839
    . See United States v. Torres, 
    128 F.3d 38
    , 42 (1st Cir.
    1997) (trial judge has the authority and responsibility, either sua sponte or upon
    counsel's motion, to dismiss prospective jurors for cause), cert. denied, 
    523 U.S. 1065
     (1998).
    Because James did not object to the district court’s sua sponte
    removal of prospective juror Altonin or to the district court’s instructions to the
    jury, we review for plain error. See United States v. Hughes, 
    191 F.3d 1317
    , 1322
    -7-
    (10th Cir. 1999). To establish plain error, James “‘must show: (1) an error, (2)
    that it is plain, which means clear or obvious under current law, and (3) that
    affect[s] substantial rights.’” 
    Id.
     (quoting United States v. Fabiano, 
    169 F.3d 1299
    , 1302 (10th Cir. 1999)).
    Juror Qualifications
    A criminal defendant is guaranteed a trial "by an impartial jury." U.S.
    Const. amend. VI. "One touchstone of a fair trial is an impartial trier of fact--'a
    jury capable and willing to decide the case solely on the evidence before it.’"
    McDonough Power Equip., Inc. v. Greenwood, 
    464 U.S. 548
    , 554 (1984) (quoting
    Smith v. Phillips, 
    455 U.S. 209
    , 217 (1982)). A juror should be excused for cause
    if a particular belief will "prevent or substantially impair the performance of his
    duties as a juror in accordance with his instructions and his oath." Wainwright v.
    Witt, 
    469 U.S. 412
    , 424 (1985). See United States v. Simmons, 
    961 F.2d 183
    , 184
    (11th Cir. 1992) (“The constitutional standard for juror impartiality is whether the
    juror ‘can lay aside his opinion and render a verdict based on the evidence
    presented in court.’") (quoting Patton v. Yount, 
    467 U.S. 1025
    , 1037 n. 12 (1984)),
    cert. denied, 
    507 U.S. 989
     (1993).
    A defendant’s right to an impartial jury does not include a right to a jury
    composed of persons who will disregard the district court’s instructions. “[T]here
    -8-
    is no right to jury nullification.” Crease v. McKune, 
    189 F.3d 1188
    , 1194 (10th
    Cir. 1999) (citing United States v. Thomas, 
    116 F.3d 606
    , 615 (2d Cir. 1997)
    (stating that "the power of juries to 'nullify' or exercise a power of lenity is just
    that--a power; it is by no means a right or something that a judge should encourage
    or permit if it is within his authority to prevent") and United States v. Powell, 
    955 F.2d 1206
    , 1213 (9th Cir. 1992) (defendants not entitled to jury nullification
    instructions)).
    To the extent the defendant's appeal seeks to require courts to facilitate jury
    nullification, the law is clear: a criminal defendant is not entitled to have
    the jury instructed that it can, despite finding the defendant guilty beyond a
    reasonable doubt, disregard the law. See United States v. Grismore, 
    546 F.2d 844
    , 849 (10th Cir. 1976). The jury's role is to apply the law to the
    facts of the case.
    United States v. Rith, 
    164 F.3d 1323
    , 1337 (10th Cir. 1999), cert. denied, 
    120 S. Ct. 78
     (1999). Cf. United States v. Mason, 
    85 F.3d 471
    , 473 (10th Cir. 1996)
    (“While we recognize that a jury in a criminal case has the practical power to
    render a verdict at odds with the evidence or the law, a jury does not have the
    lawful power to reject stipulated facts. Such a power, if exercised, would conflict
    with the jurors' sworn duty to apply the law to the facts, regardless of outcome.”).
    Analysis
    In light of his responses to questions during voir dire, the district
    -9-
    court did not abuse its discretion or commit plain error in sua sponte dismissing
    prospective juror Altonin. A person who is either unwilling or unable to follow
    the court’s instructions is not qualified to be a juror. Nor did the district court
    commit any error when it informed the jurors that it is their obligation to follow
    the law as it instructs. In short, the defendant was not deprived of his right to a
    fair trial.
    II. Challenges to Sentencing
    The defendant contends that the district court erroneously denied his
    request for a two level “downward departure” for acceptance of responsibility
    under U.S.S.G. § 3E1.1. The defendant contends that he only went to trial to
    preserve his Singleton2 argument, that he has expressed remorse for his crimes and
    has in fact accepted responsibility. The defendant notes that he provided
    information to the government and met the requirements of the “safety valve”
    provision, 
    18 U.S.C. § 3553
    (f) yet did not receive a two level reduction for
    2
    See United States v. Singleton, 
    144 F.3d 1343
     (10th Cir. 1998)
    (prosecuting attorney violated 
    18 U.S.C. § 201
    (c)(2) when he offered leniency to a
    co-defendant in exchange for truthful testimony), vacated pending rehearing en
    banc, 
    144 F.3d 1361
     (10th Cir. 1998), on rehearing en banc, United States v.
    Singleton, 
    165 F.3d 1297
    , 1298 (10th Cir. 1999) (“We now hold 
    18 U.S.C. § 201
    (c)(2) does not apply to the United States or an Assistant United States
    Attorney functioning within the official scope of the office.”), cert. denied, ---
    U.S. ----, 
    119 S. Ct. 2371
     (1999).
    -10-
    acceptance of responsibility, implying that there is no rational explanation for this
    result. The defendant also contends that the denial of his request for the two level
    “departure” is effectively a punishment for exercising his Sixth Amendment right
    to trial by jury. Finally, the defendant contends that the district court denied his
    request for allocution on the issue of acceptance of responsibility and that such an
    error requires remand for resentencing.
    The government responds to each of the defendant’s allegations,
    arguing that the defendant was not entitled to a reduction in his sentence for
    acceptance of responsibility, that the denial of acceptance of responsibility is not a
    punishment, that the defendant’s qualification for the safety valve provision did
    not automatically entitle him to the two level reduction for acceptance of
    responsibility, and that the defendant was in fact afforded the opportunity to speak
    to the court prior to the imposition of sentence.
    Two Level Downward Adjustment
    Although the defendant’s brief framed this issue in terms of the
    district court's denial of his request for a “downward departure” for acceptance of
    responsibility, using the nomenclature of the sentencing guidelines, the defendant
    was in reality seeking a two level downward adjustment in his base offense level
    for his acceptance of responsibility, not a downward departure from the sentencing
    -11-
    guidelines. Although a district court may downwardly depart from the applicable
    guideline range if the defendant demonstrates remorse to an exceptional degree,
    see United States v. Fagan, 
    162 F.3d 1280
    , 1284-85 (10th Cir. 1998) (“[R]emorse
    is a factor taken into account by the Sentencing Guidelines under acceptance of
    responsibility. If a factor is already taken into account by the Sentencing
    Guidelines, it is a permissible factor for departure if it is present to some
    exceptional degree. (Citations omitted). Because remorse is not a prohibited
    factor, but a factor already considered in the Sentencing Guidelines, a sentencing
    court may depart downward if it finds that remorse is present to an exceptional
    degree.”), the defendant in this case simply argues that the district court should
    have granted him a two point reduction in his base offense level for acceptance of
    responsibility under § 3E1.1. See United States v. Gauvin, 
    173 F.3d 798
    , 805
    (10th Cir. 1999) (“If ‘the defendant clearly demonstrates acceptance of
    responsibility for his offense,’ the district court grants a two offense-level
    downward adjustment.”) (quoting U.S.S.G. § 3E1.1(a)) (emphasis added), cert.
    denied, 
    120 S. Ct. 250
     (1999). Consequently, and as the defendant’s counsel
    conceded during oral argument, the issue on appeal is not whether the district
    court committed reversible error in denying the defendant’s request for a
    “downward departure, but instead whether the district court erroneously denied the
    -12-
    defendant’s request for a downward adjustment of two levels for acceptance of
    responsibility under U.S.S.G. § 3E1.1(a).
    Standard of Review
    “Determination of acceptance of responsibility is a question of fact
    reviewed under a clearly erroneous standard.” Gauvin, 
    173 F.3d at
    805 (citing
    United States v. Mitchell, 
    113 F.3d 1528
    , 1533 (10th Cir. 1997), cert denied, 
    522 U.S. 1063
    , (1998)). "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,
    Application Note 5.
    Acceptance of Responsibility
    “The defendant bears the burden of establishing entitlement to a
    reduction under § 3E1.1.” United States v. Bindley, 
    157 F.3d 1235
    , 1240 (10th
    Cir. 1998) (citing United States v. Nelson, 
    54 F.3d 1540
    , 1544 (10th Cir. 1995)),
    cert. denied, 
    119 S. Ct. 1086
     (1999). “To receive a reduction, the defendant must
    show 'recognition and affirmative acceptance of personal responsibility for his
    criminal conduct.' United States v. McAlpine, 
    32 F.3d 484
    , 489 (10th Cir.)
    (quoting U.S.S.G. § 3E1.1(a)), cert. denied, 
    513 U.S. 1031
     (1994). A "defendant
    who falsely denies, or frivolously contests, relevant conduct that the court
    -13-
    determines to be true has acted in a manner inconsistent with acceptance of
    responsibility." U.S.S.G. § 3E1.1, Application Note 1(a).
    The Sentencing Commission recognizes that the acceptance of
    responsibility guideline is "not intended to apply to a defendant that 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." U.S.S.G.
    § 3E1.1, Application Note 2. The commentary to § 3E1.1 continues, stating that
    "[c]onviction by trial, however, does not automatically preclude a defendant from
    consideration for such a reduction.... [A] determination that a defendant [who
    exercised his constitutional right to a trial] has accepted responsibility will be
    based primarily upon pre-trial statements and conduct." Id. See Gauvin, 
    173 F.3d at 805
    ; United States v. Moudy, 
    132 F.3d 618
    , 621 (10th Cir.), cert. denied, 
    523 U.S. 1036
     (1998); United States v. Allen, 
    129 F.3d 1159
    , 1166-67 (10th Cir.
    1997).
    "In 'rare situations' a defendant may deserve the reduction for
    acceptance of responsibility even though he goes to trial." United States v.
    Portillo-Valenzuela, 
    20 F.3d 393
    , 394 (10th Cir.), cert. denied, 
    513 U.S. 886
    (1994). As an example of an exception to the general rule against receiving a
    downward adjustment for acceptance of responsibility following conviction by
    -14-
    trial, "this may occur...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 of his conduct)." U.S.S.G. §
    3E1.1, Application Note 2. As another example, “the entrapment defense is one of
    those ‘rare situations’ contemplated by the Sentencing Guidelines in which a
    defendant may go to trial and still receive an acceptance of responsibility
    reduction.” United States v. Garcia, 
    182 F.3d 1165
    , 1173 (10th Cir. 1999) (“We
    hold only that raising the entrapment defense does not necessarily foreclose the
    possibility of receiving a reduction for acceptance of responsibility, but that does
    not mean that the simple assertion of the entrapment defense coupled with
    acknowledgment of the underlying criminal activity automatically entitles a
    defendant to a two-point acceptance of responsibility reduction.”). Similarly, a
    defendant who proceeds to trial only to contest the legal element of intent may
    still, in rare instances receive, a reduction for acceptance of responsibility.
    Gauvin, 
    173 F.3d at 806
    . In contrast, "[p]leading not guilty and requiring the
    government to prove guilt at trial demonstrate[s] denial of responsibility,
    regardless of how easily the government can prove guilt." Portillo-Valenzuela, 
    20 F.3d at 394-95
    . "A defendant is not entitled to an adjustment for acceptance of
    responsibility merely because he admits to wrongdoing." United States v.
    -15-
    McMahon, 
    91 F.3d 1394
    , 1397 (10th Cir.), cert. denied, 
    120 S. Ct. 535
     (1999).
    Singleton
    Prior to trial, the defendant filed a motion to stay the trial pending
    final resolution of the Singleton case by the Tenth Circuit. That motion was
    denied by the district court as it believed that its own prior decision in United
    States v. Dunlap, 
    17 F. Supp. 2d 1183
     (D. Colo. 1998) (agreements by government
    with cooperating witnesses does not violate the anti-gratuity statute) correctly
    stated the law. During trial the defendant renewed his Singleton motion, arguing
    that permitting the prosecution to introduce the testimony of witnesses cooperating
    with the government in exchange for the potential of a reduced sentence or other
    benefits would constitute a violation of 
    18 U.S.C. § 201
    .
    Prior to sentencing, James expressed remorse for his crimes, took
    responsibility for his acts and informed the district court that he had gone to trial
    for the purposes of creating and preserving his record on the Singleton issue. The
    district court rejected the defendant’s request for a downward adjustment for
    acceptance of responsibility.
    James’ contention that he proceeded to trial solely to preserve his
    Singleton challenge is belied by the fact he denied guilt at trial, put the
    government to the burden of proving the crimes charged, challenged the evidence
    -16-
    offered and presented a defense suggesting that he was involved in illicit
    gambling, not drug trafficking, and that the recorded conversations received into
    evidence were not related to drug deals but instead to gambling transactions.
    The district court’s conclusion that the defendant in this case did not
    go to trial solely to preserve his Singleton challenge and that he is not entitled to a
    two level adjustment for acceptance of responsibility is not clearly erroneous. The
    defendant formally denied factual guilt by pleading not guilty, forcing the
    government to prove his factual guilt at trial. The defendant’s pleas and insistence
    on proceeding to trial "brought into question whether he manifested a true remorse
    for his criminal conduct." United States v. Ochoa-Fabian, 
    935 F.2d 1139
    , 1143
    (10th Cir. 1991), cert. denied, 
    503 U.S. 961
     (1992). Contrary to the defendant’s
    argument in his reply brief, nothing precluded him from seeking to enter
    conditional pleas to preserve his Singleton challenge. In any event, the district
    court was in a much better position to evaluate the defendant’s purported reasons
    for going to trial. The district court’s denial of the defendant’s request for an
    adjustment for acceptance of responsibility was not clearly erroneous.
    Unconstitutional Penalty
    The defendant’s contention that the denial of his request for a two
    level reduction for acceptance of responsibility is an unconstitutional penalty for
    -17-
    exercising his constitutional right to proceed to trial is an argument that has been
    repeatedly rejected by the Tenth Circuit:
    [The defendant] also argues that the Constitution prevents the court from
    penalizing him for his exercise of the right to trial. However, denying the
    reduction for acceptance of responsibility is not a penalty for exercising any
    rights. The reduction is simply a reward for those who take full
    responsibility. Therefore the court may constitutionally deny the reduction
    if the defendant's exercise of a constitutional right is inconsistent with
    acceptance of responsibility. See United States v. Gordon, 
    4 F.3d 1567
    ,
    1573 (10th Cir. 1993) (holding that denying reduction for acceptance of
    responsibility is not an unconstitutional penalty for exercising Fifth
    Amendment rights); United States v. Jones, 
    997 F.2d 1475
    , 1477 (D.C. Cir.
    1993) (explaining that withholding leniency does not penalize defendant for
    exercising right to trial), cert. denied, 
    510 U.S. 1065
    , 
    114 S. Ct. 741
    , 
    126 L. Ed. 2d 704
     (1994); United States v. Rogers, 
    921 F.2d 975
    , 982-83 (10th
    Cir.) (stating that denying downward adjustment does not penalize exercise
    of Fifth Amendment rights), cert. denied, 
    498 U.S. 839
    , 
    111 S. Ct. 113
    , 
    112 L. Ed. 2d 83
     (1990); cf. Corbitt v. New Jersey, 
    439 U.S. 212
    , 223, 
    99 S. Ct. 492
    , 499, 
    58 L. Ed. 2d 466
     (1978) (holding that state may constitutionally
    reduce sentences for those who plead guilty).
    Portillo-Valenzuela, 
    20 F.3d at 395
    .
    The Safety Valve Provision
    The “safety valve” provision, 
    18 U.S.C. § 3553
    (f), provides:
    Limitation on applicability of statutory minimums in certain cases.--
    Notwithstanding any other provision of law, in the case of an offense under
    section 401, 404, or 406 of the Controlled Substances Act ( 21 U.S.C. 841,
    844, 846) or section 1010 or 1013 of the Controlled Substances Import and
    Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant
    to guidelines promulgated by the United States Sentencing Commission
    under section 994 of title 28 without regard to any statutory minimum
    sentence, if the court finds at sentencing, after the Government has been
    -18-
    afforded the opportunity to make a recommendation, that--
    (1) the defendant does not have more than 1 criminal history point, as
    determined under the sentencing guidelines;
    (2) the defendant did not use violence or credible threats of violence
    or possess a firearm or other dangerous weapon (or induce another
    participant to do so) in connection with the offense;
    (3) the offense did not result in death or serious bodily injury to any
    person;
    (4) the defendant was not an organizer, leader, manager, or supervisor
    of others in the offense, as determined under the sentencing
    guidelines and was not engaged in a continuing criminal enterprise, as
    defined in section 408 of the Controlled Substances Act; and
    (5) not later than the time of the sentencing hearing, the defendant has
    truthfully provided to the Government all information and evidence
    the defendant has concerning the offense or offenses that were part of
    the same course of conduct or of a common scheme or plan, but the
    fact that the defendant has no relevant or useful other information to
    provide or that the Government is already aware of the information
    shall not preclude a determination by the court that the defendant has
    complied with this requirement.
    U.S.S.G. § 5C1.2 adopts verbatim 
    18 U.S.C. § 3553
    (f).
    Section 3553(f) was enacted as a "safety valve" to permit courts to sentence
    less culpable defendants to sentences under the guidelines, instead of
    imposing mandatory minimum sentences. As the legislative history of the
    section states, without such a safety valve, for "the very offenders who most
    warrant proportionally lower sentences--offenders that by guideline
    definitions are the least culpable--mandatory minimums generally operate to
    block the sentence from reflecting mitigating factors." H.R.Rep. No.
    103-460, 103d Cong., 2d Sess., 
    1994 WL 107571
     (1994). This would have
    the unfortunate effect that the "least culpable offenders may receive the
    -19-
    same sentences as their relatively more culpable counterparts." 
    Id.
    United States v. Acosta-Olivas, 
    71 F.3d 375
    , 378 (10th Cir. 1995).
    “To override a mandatory minimum sentence, a defendant must prove that
    he meets all five requirements of the safety valve provision.” United States v.
    Gonzalez-Montoya, 
    161 F.3d 643
    , 651 (10th Cir. 1998), cert. denied, 
    119 S. Ct. 1284
     (1999). See United States v. Verners, 
    103 F.3d 108
    , 110 (10th Cir. 1996)
    ("Although we have not previously ruled in this circuit on the burden as applied to
    U.S.S.G. § 5C1.2, we now follow the reasoning set out by other circuits and hold
    that the defendant has the burden of proving, by a preponderance of the evidence,
    the applicability of this section."). In regard to the fifth requirement of the safety
    valve provision, the Tenth Circuit has held that § 3553(f)(5) requires a defendant
    to tell the government all that he knows about the offense of conviction and the
    relevant conduct, including the identities and participation of others in order to
    qualify for relief from the statutory mandatory minimum sentence. Acosta-Olivas,
    
    71 F.3d at 377
    .
    “[T]he safety valve provision and acceptance of responsibility under
    U.S.S.G. 3E1.1(a) are not coterminous.” Gonzalez-Montoya, 
    161 F.3d at 652
    .
    “Conviction by a jury does not foreclose relief under the safety valve provision.”
    
    Id.
     (citation omitted). Conversely, the commentary to § 3E1.1 makes clear that a
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    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" is not entitled to a two level reduction for acceptance of
    responsibility. Consequently, the district court’s finding that the defendant
    qualified for the safety valve provision did not automatically entitle him to a
    downward adjustment for acceptance of responsibility.
    Allocution
    The defendant contends that the district court treated his request for a two
    level departure as a purely legal question and denied his request to address the
    court with regard to that issue during sentencing. The defendant contends that this
    ruling violated Fed. R. Crim. P. 32(a)(1)(C) and his right of allocution. The
    government responds, arguing that the defendant’s counsel was provided an
    opportunity to object to the PSIR and that the district court did not impose
    sentence until ruling on those objections. In any event, the government contends
    that the court actually provided the defendant with an opportunity to address the
    court prior to imposing sentence.
    “[B]efore imposing sentence the court must ‘address the defendant
    personally and determine if the defendant wishes to make a statement and to
    present any information in mitigation of the sentence.’" United States v. Archer,
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    70 F.3d 1149
    , 1151 (10th Cir. 1995) (quoting Fed. R. Crim. P. 32(a)(1)(C)). "The
    right to allocution is an integral part of the sentencing process which if not fully
    afforded to the defendant requires a reversal of the sentence imposed." United
    States v. Muniz, 
    1 F.3d 1018
    , 1025 (10th Cir.) (citing Green v. United States, 
    365 U.S. 301
    , 304 (1961)), cert. denied, 
    510 U.S. 1002
     (1993).
    We have reviewed the transcript of the sentencing hearing and are satisfied
    that the defendant was specifically afforded an opportunity to address the district
    court prior to imposition of sentence. In fact, prior to the pronouncement of
    sentence the defendant personally addressed the district court and offered these
    comments regarding his reasons for going to trial and why he should be entitled to
    a downward adjustment of two levels for acceptance of responsibility:
    And the only reason I did go to trial was to preserve my issues on
    Singleton and to keep them on record, Your Honor. I never tried to shirk
    the responsibility. I never tried to run. When the police came to get me, we
    came peacefully. There was no problem, waived extradition to get back to
    take care of this, Your Honor.
    (Rec. vol. 5, 13).
    Conclusion
    The district court did not err in sua sponte striking prospective juror
    Altonin, nor did it err by informing the jurors that they are required to follow the
    law as it instructs. The district court did not err in refusing to grant the
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    defendant’s request for a two-point reduction in his base offense level for
    acceptance of responsibility, nor did it deny the defendant his right of allocution..
    AFFIRMED.
    Entered for the Court
    Sam A. Crow
    District Judge
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