No. 01-8237 PEREZ v. UNITED STATES. C.A. 8th Cir. Certiorari denied. Reported below; 270 F.3d 737. No. 01-8238 AYALA-MORENO v. UNITED STATES. C.A. 5th Cir. Certiorari denied.

There may be "extraordinary cases" in which a defendant could still be eligible for an acceptance of responsibility reduction, however. See U.S.S.G. § 3E1.1 cmt. n. 4; United States v. Perez, 270 F.3d 737, 739 (8th Cir. 2001). To determine whether a case is extraordinary, a district court should consider "the totality of the circumstances, including the nature of the [defendant's] obstructive conduct and the degree of [defendant's] acceptance of responsibility."

Although there may be "extraordinary cases" in which both adjustments apply, U.S.S.G. § 3E1.1 comment, n. 4, a case in which "a reduction for acceptance of responsibility is warranted in spite of a defendant's obstructive conduct `would be extremely rare.'" United States v. Perez, 270 F.3d 737, 739 (8th Cir. 2001), quoting United States v. Honken, 184 F.3d 961, 969 (8th Cir. 1999). To determine whether a case is "extraordinary," a district court should consider "the totality of the circumstances, including the nature of the appellee's obstructive conduct and the degree of appellee's acceptance of responsibility."

United States v. Peterson, 455 F.3d 834, 837 (8th Cir. 2006) (citation omitted). We review for clear error the district court's factual findings, id., and its decision to grant a reduction for acceptance of responsibility, United States v. Perez, 270 F.3d 737, 739 (8th Cir.2001). A. Possessing a Firearm in Connection With Another Felony Offense

Because the district court failed to inform him of his alleged right to have a jury determine drug quantity, he contends that his guilty plea was not knowing and voluntary. See United States v. Perez, 270 F.3d 737, 739-40 (8th Cir. 2001), cert. denied, 535 U.S. 945, 122 S.Ct. 1336, 152 L.Ed.2d 241 (2002). Since Mr. Williams's case was briefed and argued, the Supreme Court decided Booker, 125 S.Ct. at 750, in which it held that judicial fact-finding in the process of calculating the applicable sentencing guidelines range does not violate a defendant's sixth amendment rights, provided the range is not binding on the sentencing court. Mr. Williams's guilty plea is therefore valid, since he had no sixth amendment right to have a jury determine the drug quantity that establishes the applicable offense level under the sentencing guidelines.

Bousley, 523 U.S. at 618, 118 S.Ct. 1604 (citing Henderson, 426 U.S. at 650, 96 S.Ct. 2253 (1976) (White, J., concurring)). Relying on the Bousley presumption, the Eighth Circuit Court of Appeals rejected a Rule 11 challenge identical to Valdez's the district court's alleged failure to inform the defendant that the government would be required to prove the quantity of the controlled substances beyond a reasonable doubt. United States v. Perez, 270 F.3d 737, 739 (8th Cir. 2001). That court was persuaded by the facts that (a) the trial court had advised the defendant of the quantity of controlled substances alleged in the indictment and the sentencing range based on those quantities and (b) the defendant pleaded guilty to those amounts stated in the indictment.

We extend great deference to the sentencing court's decision to grant an enhancement for obstruction of justice or deny a reduction for acceptance of responsibility. United States v. Perez, 270 F.3d 737, 739 (8th Cir. 2001); United States v. Arellano, 291 F.3d 1032, 1034 (8th Cir. 2002). U.S.S.G. § 3C1.1 provides that a court should increase a defendant's offense level by two levels if "the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the . . . prosecution . . . of the instant offense of conviction.

Because overwhelming evidence existed that Minore trafficked in drug quantities well in excess of those necessary to expose him to a potential life sentence, it is not unfair to hold him to his guilty plea." (footnote omitted)); United States v. Wallace, 276 F.3d 360, 369 (7th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 2592, 153 L.Ed.2d 781 (2002) (holding that fourth Olano prong was not satisfied in a case where the sentencing court failed to advise the defendant that the government had to prove drug quantity to a jury beyond a reasonable doubt because the defendant admitted quantity "under oath, both in his stipulation of facts and during the plea colloquy, and conceded at sentencing that the government could prove [the quantity] beyond a reasonable doubt"); United States v. Perez, 270 F.3d 737, 740 (8th Cir. 2001), cert. denied, 535 U.S. 945, 122 S.Ct. 1336, 152 L.Ed.2d 241 (2002) (failure to advise defendant at plea taking that jury must decide drug quantity did not seriously undermine the fairness, integrity or public reputation of the proceeding where defendant agreed he was responsible for sufficient quantities to subject him to enhanced punishment under § 841(b)(1)(B)). Although we have previously held that the imposition of a 240-month sentence does not generate an Apprendi error, see Angle, 254 F.3d at 518 ("Because Angle's sentence of 210 months is less than the maximum penalty authorized by the facts found by the jury (240 months, see 21 U.S.C.A. § 841(b)(1)(C)), there was no error."), the government does not suggest that the district court properly applied the Guidelines to Shaw's case because the sentence imposed did not exceed the statutory maximum.

Because "the district court properly considered all of the relevant circumstances," and "the weight assigned to any one factor . . . is within the district court's discretion," we conclude that the court did not clearly err in denying Stoltenberg's request for an acceptance-of-responsibility reduction. SeeUnited States v. Perez, 270 F.3d 737, 739 (8th Cir. 2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1336, 152 L.Ed.2d 241 (2002). We therefore affirm the judgment of the district court.

Angone agreed that he was responsible for 766 plants, but the remaining quantity of marijuana plants for which he could properly be held responsible was very much in dispute. CompareMinore, 292 F.3d at 1120 (holding that a failure to comply with Rule 11(c)(1) did not seriously affect fairness, integrity, or public reputation of the proceeding where defendant admitted in his plea agreement, during his plea colloquy and at sentencing that he should be held responsible for a quantity of marijuana "far greater than the 1000 kilograms required to expose [him] to a statutory maximum life in prison" under 21 U.S.C. § 841(b)(1)(A)); United States v. Perez, 270 F.3d 737, 740 (8th Cir.2001) (holding that a failure to inform defendant at plea colloquy that jury must determine drug quantity beyond a reasonable doubt did not undermine the fairness, integrity, or public reputation of the proceeding where defendant admitted responsibility for sufficient quantity to expose him to the enhanced penalties of § 841(b)(1)(B)). Because the district court's plain error affected Angone's substantial rights and seriously affected the fairness of the proceeding, namely the knowing and voluntary nature of his guilty plea, we vacate his guilty plea.