Defendant Who Went to Trial Because Not Given New Attorney Properly Denied Acceptance Adjustment

U.S. v. Lujan-Lopez. 2013 WL 4504775 (8/26/13) (Col.) (unpub'd) - The district court did not clearly err when it refused to accord the reentry-after-deportation defendant a reduction for acceptance of responsibility where: just prior to jury selection the defendant admitted he was guilty and said he didn't want to go trial but wanted another attorney to get a better deal, given his unhappiness with the guideline range [sound familiar?]; following the district court's refusal to give the defendant a new attorney, the defendant went to trial; he admitted guilt in his testimony and testified he went to trial only to obtain "compassion from the jury." The district court could deny a USSG § 3E1.1 reduction because the defendant opted to go to trial and hold the government to its burden of proof resulting in pretrial pleadings and a 2-day trial with a number of witnesses and exhibits. The § 3E1.1 application note 2 exception (for going to trial just to preserve an issue unrelated to factual guilt) did not apply here. Indeed his behavior amounted to "an abuse of our judicial system." The district court varied down to 77 months---the low end of what would have been the range with a 2-level 3E1.1 reduction---because it thought the penalty for going to trial was unfair. That sentence was substantively reasonable, the 10th held.