United States v. Juan Mojica-Almaguer ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3909
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Juan Mojica-Almaguer, also known as *
Andres Perez-Perez, also known as * [UNPUBLISHED]
Jose Dejesus Hurtado, *
*
Appellant. *
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Submitted: December 4, 2006
Filed: December 7, 2006
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Before SMITH, MAGILL, and BENTON, Circuit Judges.
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PER CURIAM.
Juan Mojica-Almaguer appeals the sentence the district court1 imposed after a
jury found him guilty of illegal reentry after deportation, in violation of 8 U.S.C.
§ 1326(a). He argues that the district court erred at sentencing in refusing to grant a
2-level reduction in his offense level for acceptance of responsibility. We reject this
argument and affirm Mojica-Almaguer’s sentence.
1
The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
The district court’s finding--that Mojica-Almaguer’s case was not one of the
rare cases when an acceptance-of-responsibility reduction is appropriate for a
defendant who has gone to trial--is not “so clearly erroneous as to be without
foundation.” See United States v. Card, 390 F.3d 592, 594-95 (8th Cir. 2004)
(standard of review). Mojica-Almaguer put the government to its burden of proof at
trial, cross-examined witnesses, contested evidence, and moved for a judgment of
acquittal on the basis that the government had failed to establish one of the factual
elements of the charged crime. See United States v. Cordero, 465 F.3d 626, 631-32
(5th Cir. 2006) (affirming denial of reduction for accepting responsibility where
defendant, in addition to moving to suppress evidence against him, did not stipulate
to all evidence necessary for conviction and instead put government to its burden of
proof, and moved for judgment of acquittal at end of trial on grounds that government
failed to prove its case beyond reasonable doubt); United States v. Stuart, 923 F.2d
607, 613 (8th Cir. 1991) (statements made by defendant acknowledging his guilt
during presentence interview and during allocution at sentencing did not entitle him
to reduction in offense level for acceptance of responsibility). We also reject Mojica-
Almaguer’s argument that U.S.S.G. § 3E1.1 punishes a defendant for exercising his
constitutional right to trial. See United States v. Smith, 40 F.3d 933, 935 (8th Cir.
1994).
Accordingly, we affirm.
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