60 F.3d 835

MEMORANDUM**

Lee Roy Hannon, Jr. appeals his sentence under the Sentencing Guidelines imposed following his guilty plea to eighteen counts of submitting a false claim upon the United States and aiding and abetting, in violation of 18 U.S.C. Secs. 287 and 2. Hannon contends that the district court erred in departing upward on the ground that Hannon’s criminal history score did not adequately reflect the seriousness of his past criminal conduct.

The government argues that this appeal should be dismissed because Hannon waived his right to appeal in his plea agreement. We agree. We reject Hannon’s contention that he did not waive his right to appeal the district court’s upward departure for under-representation of criminal history where the plea agreement provided that the government would not recommend an upward departure on that basis. In the plea agreement, Hannon expressly waived “the right to appeal the sentence in this case, by pleading guilty pursuant to this Plea Agreement —.” The agreement stated further that it was his “knowing and voluntary intention to” waive his right to appeal. The agreement also stated that Hannon “understands that none of the foregoing recommendations is binding upon the Court, which retains the power to sentence the defendant to the maximum allowable penalty.” Hannon does not dispute that the government fully complied with the terms of the plea agreement. In these circumstances, we lack jurisdiction to review the sentence. See United States v. Bolinger, 940 F.2d 478, 479-480 (9th Cir. 1991).

DISMISSED.

MEMORANDUM**

James Howard West appeals his sentence following a guilty plea to willful failure to file income tax returns in violation of 26 U.S.C. Sec. 7203. West contends that the district court erred by refusing to grant a two-level reduction in his offense level for acceptance of responsibility under U.S.S.G. Sec. 3E1.1. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

West contends that the district court erred by failing to grant an adjustment for acceptance of responsibility because the court predicated its decision on uncharged conduct occurring prior to his guilty plea. West asserts that the court’s consideration of his failure to admit the uncharged conduct is a violation of his Fifth Amendment right against self-incrimination. West’s contention lacks merit.

Whether a defendant has accepted responsibility for his crime is a factual determination reviewed for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). The determination of the sentencing judge is entitled to great deference on review. United States v. Smith, 905 F.2d 1296, 1301 (9th Cir. 1990); U.S.S.G. Sec. 3E1.1, comment. (n.5).

A defendant is entitled to a two level reduction if he “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. Sec. 3E1.1(a). Entry of a guilty plea combined with truthfully admitting the offense, and truthfully admitting or not falsely denying any additional relevant conduct, constitutes significant evidence of acceptance of responsibility. U.S.S.G. Sec. 3E1.1, comment. (n.3). This evidence, however, may be outweighed by conduct that is inconsistent with acceptance of responsibility. Id. “[A] defendant may be entitled to a Sec. 3E1.1 reduction without being required to confess to unproved, uncharged conduct.” United States v. Piper, 918 F.2d 839, 840 (9th Cir. 1990) (per curiam). A defendant, however, must show contrition for the crime of which he is convicted. Id. at 841.

Here, the district court denied the Sec. 3E1.1(a) reduction based on these undisputed facts: (1) West’s continued failure to file tax returns; (2) his continued failure to pay outstanding tax liabilities, despite an ability to pay; and (3) the evasive reasons he gave for failing to file his tax returns. The court did not require West to admit responsibility for any uncharged conduct, in violation of his Fifth Amendment right against self-incrimination. See Piper, 918 F.2d at 840. The district court merely considered this relevant conduct, and determined that West had not accepted responsibility for the offense charged. See U.S.S.G. Sec. 3E1.1, comment. (n.3).

West must show some evidence of contrition for the crime of which he was convicted, and he did not. See Piper, 918 F.2d at 841. His guilty plea to the offense did not entitle him to a Sec. 3E1.1 reduction as a matter of right. See U.S.S.G. Sec. 3E1.1, comment. (n.3). Accordingly, we find that the district court’s denial of a reduction for acceptance of responsibility was not clear error. See Gonzalez, 897 F.2d at 1019.

AFFIRMED.