Here, Luong's evidentiary challenges, some of which were sustained and resulted in stricken testimony, were part and parcel of Luong's challenge to the interstate-commerce nexus. See United States v Rojas-Flores , 384 F.3d 775, 780–81 (9th Cir. 2004) (holding that the district court erred in denying adjustment for acceptance of responsibility where the defendant went to trial to challenge the applicability of the statute of offense instead of his factual guilt, and the defendant cross-examined witnesses); United States v. Ing , 70 F.3d 553, 556 (9th Cir. 1995) (vacating sentence and remanding case for resentencing, noting that "an entrapment defense is not necessarily incompatible with acceptance of responsibility"); McKinney , 15 F.3d at 852 (noting that a defense that relied on cross-examination and presented no affirmative defense "is hardly the kind of defense that refutes the strong inference that [the defendant] accepted responsibility"). While the government also takes issue with Luong's counsel's use of the word "innocence" during closing arguments and Luong's failure to demonstrate, in the government's view, meaningful contrition, these arguments are non-starters.

The question of whether a defendant who raises an entrapment defense is precluded as a matter of law from receiving an acceptance of responsibility adjustment has bedeviled our sister circuits. Compare United States v. Garcia, 182 F.3d 1165 (10th Cir.1999) (entrapment defense does not bar defendant from seeking acceptance of responsibility adjustment as matter of law);Joiner v. United States, 103 F.3d 961 (11th Cir.1997) (same); United States v. Ing, 70 F.3d 553 (9th Cir.1995) (same); United States v. Fleener, 900 F.2d 914 (6th Cir.1990) (same) with United States v. Chevre, 146 F.3d 622 (8th Cir.1998) (entrapment defense per se incompatible with acceptance of responsibility adjustment); United States v. Brace, 145 F.3d 247 (5th Cir.1998) (en banc) (same); with United States v. Kirkland, 104 F.3d 1403 (D.C. Cir.1997) (indicating general in compatibility of entrapment defense with acceptance of responsibility adjustment); United States v. Demes, 941 F.2d 220 (3d Cir.1991) (same). If the district court's denial of the acceptance of responsibility adjustment hinged solely on this point, we would be squarely confronted with the issue. However, it is clear the district court relied on the particular facts of Taylor's case to deny the adjustment.

However, our case law makes clear that the reduction is inappropriate where the defendant does not admit that he or she had the intent to commit the crime. See id. (upholding district court's refusal to grant reduction where the defendant attempted to accept responsibility but denied the intent element of the offense); United States v. Ing, 70 F.3d 553, 556 (9th Cir. 1995) (holding that district court clearly erred in denying reduction where the defendant raised an entrapment defense, but "admitted his conduct and his intent throughout"); United States v. Burrows, 36 F.3d 875, 883 (9th Cir. 1994) (holding that the defendant was not entitled to adjustment where during and after trial he maintained that he lacked mens rea). Johal did not admit that he had the intent to distribute the chemical-containing cold pills for the purpose of making illegal drugs.

In rare cases a defendant can benefit from accepting responsibility for criminal conduct despite requiring trial. United States v. Gillam, 167 F.3d 1273, 1280 (9th Cir. 1999) (noting that "[i]n rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to trial") (quoting U.S.S.G. § 3E1.1 Application Note 1 (1997)); United States v. Ing, 70 F.3d 553, 556 (9th Cir. 1995) (holding that pursuing an entrapment defense is not inconsistent with downward adjustment for acceptance of responsibility). Here, however, Neiss's challenge to the charge that he possessed a machine gun did not fall within one of these rare circumstances.

Because it is for the district court to rule on sentencing issues in the first instance, we remand for the court to make findings. United States v. Ing, 70 F.3d 553, 557 (9th Cir. 1995) (quoting United States v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990)).

Where a defendant presents an entrapment defense, "the sentencing judge must look at all the evidence bearing on the defendant's contrition." United States v. Ing, 70 F.3d 553, 556 (9th Cir.1995).

See United States v. Demes, 941 F.2d 220, 222 (3d Cir. 1991) ("[I]t is conceivable to hypothesize a case in which a plea of entrapment would not be inconsistent with the acceptance of responsibility. . . ."); United States v. Fleener, 900 F.2d 914, 918 (6th Cir. 1990) ("[W]e find that the district court did not err in considering a reduction for acceptance of responsibility even though [the defendant] raised an entrapment defense at trial. Such a defense is no less inconsistent with the Guidelines provision than is a plea of not guilty, which does not raise an absolute bar to a court's consideration."); United States v. Ing, 70 F.3d 553, 556 (9th Cir. 1995) ("The assertion of an entrapment defense is not necessarily incompatible with acceptance of responsibility."); United States v. Davis, 36 F.3d 1424, 1435 (9th Cir. 1994) ("[T]he district court could not have found that [the defendant] had not accepted responsibility solely because he presented an entrapment defense at trial."); Joiner v. United States, 103 F.3d 961, 963 (11th Cir.) ("[The defendant] would not have been barred as a matter of law from receiving an adjustment merely because he asserted an entrapment defense at trial, even though some courts have viewed the assertion of an entrapment defense as the virtual antithesis of acceptance of responsibility.

Even a defendant who contests his factual guilt at trial may, under some circumstances, be entitled to such an adjustment. See United States v. Ing, 70 F.3d 553, 556 (9th Cir. 1995) (entrapment defense is not inconsistent with downward adjustment for acceptance of responsibility); United States v. McKinney, 15 F.3d 849, 852-53 (9th Cir. 1994) (defendant who had assisted authorities immediately upon his arrest, attempted to plead guilty, and declined to call any witnesses or raise an affirmative defense was entitled to acceptance of responsibility credit despite contesting factual guilt at trial through cross-examination of prosecution witnesses). In the instant case, a number of factors were present that would have supported an acceptance of responsibility adjustment.

U.S.S.G. § 3E1.1, Application Note 5. Clear error is needed for reversal. United States v. Ing, 70 F.3d 553, 555 (9th Cir. 1995). There was none.

Rather, as with cases involving any other defense, whether a defendant has accepted responsibility is a fact-based question which requires the district court to carefully review all of the evidence bearing on a particular defendant's contrition. See United States v. Newson, 46 F.3d 730, 734 (8th Cir. 1995) (whether a defendant has demonstrated acceptance of responsibility is a fact based question and assertion of an entrapment defense does not automatically bar a defendant from receiving an acceptance of responsibility reduction); United States v. Ing, 70 F.3d 553, 555 (9th Cir. 1995) ("The assertion of an entrapment defense is not necessarily incompatible with acceptance of responsibility."). Nonetheless, Joiner would not have had a reasonable probability of success on the wrongful denial claim.