United States v. Damon Fitzgerald

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-1493
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Damon E. Fitzgerald, * District of Nebraska.
*
Appellant. * [UNPUBLISHED]
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Submitted: March 6, 2009
Filed: March 11, 2009
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Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
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PER CURIAM.
Following a jury trial, Damon Fitzgerald was found guilty of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e). Fitzgerald
argues that, in calculating the advisory Guidelines imprisonment range of 235-293
months, the district court1 erred in denying a 2-level reduction for accepting
responsibility, see U.S.S.G. § 3E1.1.
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
We review for clear error the district court’s denial of the acceptance-of-
responsibility reduction. See United States v. Jones, 539 F.3d 895, 897 (8th Cir.
2008). The district court did not clearly err in denying the reduction. See United
States v. Winters, 416 F.3d 856, 860 (8th Cir. 2005) (factual determination on whether
defendant has demonstrated acceptance of responsibility is entitled to great deference
and should be reversed only if it is so clearly erroneous as to be without foundation).
Fitzgerald conceded factual guilt only through his testimony at trial after putting the
government to its burden of proof. See United States v. Crumley, 528 F.3d 1053,
1067-68 (8th Cir. 2008) (reduction is generally not appropriate if government goes
through burden of proving its case at trial, unless defendant was merely ascertaining
viability of issue unrelated to guilt, such as constitutional challenge to statute). We
also find that no Sixth Amendment concerns are implicated. See United States v.
Benitez, 531 F.3d 711, 717 (8th Cir. 2008) (no merit to argument that § 3E1.1 has
unconstitutional chilling effect on Sixth Amendment right to trial).
Accordingly, we affirm.
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