constitutional right to a trial. 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). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct. Here, Mr. Francis did put the government to its burden of proof by declining to plead guilty; Mr. Francis insisted on proceeding to trial. However, as the Guideline Commentary makes clear, Mr. Francis remained eligible, at the discretion of the district court, for the § 3E1.1(a) reduction. See also United States v. Garcia, 182 F.3d 1165, 1172 (10th Cir.1999) (<HOLDING>). We conclude that the record adequately
holding that per se statutory rule is not permissible under fourth amendment holding such agreements to be per se illegal holding that a  3e11 reduction is not per se unavailable just because the defendant chose to go to trial solely on an affirmative defense holding that laches is an affirmative defense holding that fair use is an affirmative defense