Rеyes Portillo-Valenzuela appeals his sentence for unlawful reentry into the United States in violation of 8 U.S.C. § 1326(b)(2). He claims that the district court should have reduced his offense level under the United States Sentencing Guidelines by two or three levels because he accepted rеsponsibility for his crime. See U.S.S.G. § 3E1.1. We conclude that the district court did not clearly *394 err when it found that Portillo-Valenzuela’s plea of not guilty and insistence on trial to prove his guilt indicated that he had not accepted responsibility for his crime. We therefore affirm the sentence.
BACKGROUND
Portillо-Valenzuela was deported twice after drug convictions in 1990. In March, 1993, he was arrested under a different name in Pueblo, Colorado. Portillo-Valenzuela cooperated with the Immigration and Naturalization Service by admitting his true name and confessing that he was in the country illegally and had been deported before.
Nevertheless, Portillo-Valenzuela pleaded not guilty and went to trial. ■ He did not testify and did not try to retract his confession, but he did require the government to prove his factual guilt.
At sentencing Portillo-Valenzuela argued that the court should reducе his offense level by three levels because he had accepted responsibility and qualified for the reduction in U.S.S.G. § 3El.l(b). The district court refusеd to grant any reduction for acceptance of responsibility because Portillo-Valenzuela had pleaded not guilty and forсed the government to prove his factual guilt at trial. Portillo-Valenzuela appealed the sentence.
DISCUSSION
I. Acceptance of Responsibility
Portillo-Valenzuela must рrove by a preponderance of the evidence that he is entitled to the sentence reduction.
See United States v. Amos,
In “rare situations” a defendant may deserve the reduction for acceptance of responsibility even though he goes to trial. U.S.S.G. § 3E1.1, comment, (n. 2);
United States v. March,
Portillo-Valenzuela did not go to trial tо assert such nonfactual challenges, however. He formally denied factual guilt by pleading not guilty, and forced the government to prove his factual guilt at trial. Portillo-Va-lenzuela’s plea and insistence on trial “brought into question whether he manifested a true remorse for his criminal conduct.”
United States v. Ochoa-Fahian,
Portillo-Valenzuela suggests that the government’s proof of his guilt was a mere formality because he did not deny his guilt. But the question is not whether he actively asserted his innocence, but whether he “clearly demonstrate^]” acceptance of his guilt. U.S.S.G. § 3E1.1(a);
Chimal,
Portillo-Valenzuela argues that the guidelines do not pеrmit the court to deny the reduction simply because the defendant went to trial. He misunderstands application note 2 to section 3E1.1, which says that “[i]n rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial.... In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.” This application note simply 'explains that in all but rare cases going to trial will preclude reduction for acceptance of responsibility, but in those rare eases acceрtance of responsibility will be based upon pretrial statements and conduct rather than post-conviction admissions of guilt and expressions of remorse. It does not suggest that in some or all cases the court may not consider whether the defendant pleaded not guilty and went to trial.
Portillo-Valenzuela also argues that section 3El.l(b) indicates that pleading guilty is not essential because it provides an additional reduction if a defendant with an offense level of sixteen or more either “timely pro-vid[es] complete information ... concerning his оwn involvement in the offense” or “timely notifies] authorities of his intention to enter a.plea of guilty.” Even if this subsection were additional evidence that pleading guilty is not always necessary, it does not suggest that a defendant’s plea is irrelevant and may not be considered at all'.
Finally, we note that we need not consider Portillo-Valenzuela’s claim that he was entitled to an additional reduction under subsection (b) becаuse that additional reduction only applies if the defendant qualifies for the two-level reduction under subsection (a). See U.S.S.G. § 3El.l(b).
II. Constitutionality
Portillo-Valenzuela also argues that the Constitution prevents the court from penalizing him for his exercise of the right to trial. However, denying the reduction for acceptance of responsibility is not a penalty for exercising any rights. The reduction is simply a reward for those who take full responsibility. Thеrefore the court, may constitutionally deny the reduction if the defendant’s exercise of a constitutional right is inconsistent with acceptance of responsibility.
See United States v. Gordon,
We therefore DENY the government’s motion to supplement the record on appeal and AFFIRM Portillo-Valenzuela’s sentence. The mandate shall issue forthwith.