United States v. David Joseph Fanyak , 145 F.3d 1341 ( 1998 )

145 F.3d 1341

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
David Joseph FANYAK, Defendant-Appellant.

No. 97-30284.

United States Court of Appeals, Ninth Circuit.

May 22, 1998.

Appeal from the United States District Court for the District of Montana.

Before: SCHROEDER, TROTT, and FERNANDEZ, Circuit Judges.

MEMORANDUM*

MOLLOY, J., Presiding

1

Submitted May 14, 1998**

2

David Joseph Fanyak appeals the sentence imposed following his jury conviction for conspiracy to possess marijuana with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for clear error, see United States v. Felix, 87 F.3d 1057, 1060 (9th Cir.1996), and we affirm.

3

Fanyak contends that the district court erred by denying him a two-level adjustment for acceptance of responsibility because he went to trial only to challenge the applicability of the attempt statute to his conduct. See U.S.S.G. § 3E1.1, comment. (n.2) (1995). This contention lacks merit because Fanyak contested his factual guilt at trial for the conspiracy offense, the only offense of which he was convicted, and this is not a rare case where the reduction should be granted anyway. See U.S.S.G. § 3E1.1, comment. (n.2); United States v. Easter, 66 F.3d 1018, 1024 (9th Cir.1995). Accordingly, the district court did not clearly err in denying an adjustment for acceptance of responsibility.

4

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3

**

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4