United States of America v. Brigido Luna Zapien

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIGIDO LUNA ZAPIEN,
Defendant-Appellant.
No. 14-10224
D.C. No.
4:12-cr-00583-DCB-CRP-4
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
David C. Bury, Senior District Judge, Presiding
Argued and Submitted May 9, 2016
San Francisco, California
Before: McKEOWN and FRIEDLAND, Circuit Judges, and BOULWARE,**
District Judge.
Brigido Luna Zapien challenges his sentence, imposed after a jury found
him guilty of conspiracy to possess with intent to distribute methamphetamine and
possession with intent to distribute methamphetamine. At sentencing, the district
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Richard F. Boulware, United States District Judge for
the District of Nevada, sitting by designation.
FILED
JUL 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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court denied Luna Zapien’s motion for a finding of acceptance of responsibility,
stating that it could not find that the acceptance of responsibility adjustment
applied to Luna Zapien. Luna Zapien was then sentenced to concurrent terms of
imprisonment for 120 months and supervised release terms of five years for each
count.
Luna Zapien argues that the district court committed clear error by denying
his motion for a Guidelines reduction on the basis of acceptance of responsibility.
We disagree.
The district court's interpretation of the Sentencing Guidelines is reviewed
de novo, while its decision whether a defendant accepted responsibility for his
offense is reviewed for clear error. United States v. Ramos-Medina, 706 F.3d 932,
936 (9th Cir. 2013), as amended (Jan. 11, 2013).
Under the Sentencing Guidelines, a defendant is entitled to a two-level
reduction in his offense level if he “clearly demonstrates acceptance of
responsibility for his offense.” U.S. Sentencing Guidelines Manual §3E1.1 (U.S.
Sentencing Comm’n 2014). “The defendant bears the burden of showing that he
has accepted responsibility for his actions.” United States v. Ramos-Medina, 706
F.3d 932, 940 (9th Cir. 2013) (citing United States v. Cortes, 299 F.3d 1030, 1038
(9th Cir. 2002)). The Application Notes to Section 3E1.1 state that “truthfully
admitting the conduct comprising the offense(s) of conviction, and truthfully

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admitting or not falsely denying any additional relevant conduct for which the
defendant is accountable under §1B1.3” are appropriate considerations for whether
a defendant has accepted responsibility. U.S. Sentencing Guidelines Manual
§3E1.1, App. Note 1(A) (U.S. Sentencing Comm’n 2014). Further, “[t]his
adjustment is not intended to apply to a defendant who puts the government to its
burden of proof at trial by denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses remorse.” Id. at App. Note 2;
United States v. Barron-Rivera, 922 F.2d 549, 553 (9th Cir. 1991) (explaining that
Note 2 indicates that “where factual guilt is contested the defendant has not
accepted responsibility”). In “rare situations,” however, a defendant may still
demonstrate acceptance of responsibility even while proceeding to trial. U.S.
Sentencing Guidelines Manual §3E1.1, App. Note 2 (U.S. Sentencing Comm’n
2014). “This may occur, for example, where a defendant goes to trial to assert and
preserve issues that do not relate to factual guilt (e.g., to make a constitutional
challenge to a statute or a challenge to the applicability of a statute to his
conduct).” Id.
“In reviewing a district court’s determination as to a defendant’s acceptance
of responsibility, we must afford the district court ‘great deference’ because of its
‘unique position to evaluate a defendant’s acceptance of responsibility.’” United
States v. Scrivener, 189 F.3d 944, 947-48 (9th Cir. 1999) (quoting United States v.

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Fellows, 157 F.3d 1197, 1202 (9th Cir. 1998)). The district court need not state
specific reasons for its finding with respect to acceptance of responsibility. United
States v. Marquardt, 949 F.2d 283, 285-86 (9th Cir. 1991) (per curiam).
The district court’s denial of an adjustment for acceptance of responsibility
was not clearly erroneous under the circumstances in this case. There is no
indication in the record that Luna Zapien went to trial solely to preserve the
suppression issue for appeal or that he attempted in any way to minimize the
burden of trial on the government.
The district court’s denial of the motion for acceptance of responsibility is
thus AFFIRMED.

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