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United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Lansing Zachary ROCK ABOVE, Defendant-Appellant.

No. 19-30051

Decided: October 23, 2019

Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges. Leif Johnson, Assistant U.S. Attorney, Office of the US Attorney, Billings, MT, Paulette Lynn Stewart, Assistant U.S. Attorney, USHE - Office of the US Attorney, Helena, MT, for Plaintiff - Appellee Joslyn Michelle Hunt, FDMT-Federal Defenders of Montana, Helena, MT, for Defendant - Appellant


Lansing Zachary Rock Above appeals from the district court’s judgment and challenges the sentence of 74 months and 14 days imposed following his guilty-plea conviction for assault resulting in substantial bodily injury, in violation of 18 U.S.C. §§ 113(a)(7) and 1153(a), and tampering with a victim, witness, or informant, in violation of 18 U.S.C. §§ 1512(b) and 2. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Rock Above contends that the district court erred by failing to grant a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. We review the district court’s factual findings for clear error and its application of the Sentencing Guidelines to those findings for abuse of discretion. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). The district court did not abuse its discretion by denying the adjustment because the record supports its finding that Rock Above’s statements to the probation officer and the court, including those asserting that the allegations against him were false and minimizing the seriousness of his conduct, were inconsistent with genuine contrition for his actions. See U.S.S.G. § 3E1.1(a): United States v. Rodriguez, 851 F.3d 931, 949 (9th Cir. 2017). To the extent that Rock Above argues that he was entitled to an additional one-level reduction pursuant to U.S.S.G. § 3E1.1(b), he was ineligible for this reduction because the government did not move for it. See U.S.S.G. § 3E1.1(b) & cmt. n.6 (2018).


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