United States v. Flores , 70 F. App'x 196 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 11, 2003
Charles R. Fulbruge III
Clerk
No. 03-10068
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN FLORES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CR-114-7-A
--------------------
Before JOLLY, WIENER and CLEMENT, Circuit Judges.
PER CURIAM:*
Steven Flores appeals his guilty-plea conviction for
transporting illegal aliens in violation of 8 U.S.C.
§ 1324(a)(1)(A)(ii) and (v)(II). He argues that the district
court erred in refusing to adjust his offense level downward by
two levels for acceptance of responsibility because he refused to
submit to a presentence interview by a probation officer.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-10068
-2-
If a defendant “clearly demonstrates acceptance of
responsibility for his offense,” the sentencing guidelines
instruct the district court to decrease the defendant’s offense
level by two points. U.S.S.G. §3E1.1(a). Whether a defendant
has sufficiently demonstrated acceptance of responsibility is a
factual question, and the standard of review is even more
deferential than “clear error.” United States v. Spires, 79 F.3d
464, 467 (5th Cir. 1996). This court will affirm a sentencing
court’s decision not to award a reduction under U.S.S.G. § 3E1.1
unless it is “without foundation.” United States v. Hooten, 933
F.2d 293, 297-98 (5th Cir. 1991).
We have recognized the refusal to debrief a probation
officer as a factor in deciding whether to apply the adjustment
for acceptance of responsibility, and, most recently, we have
stated that a defendant’s refusal to make a statement of
acceptance of responsibility to a probation officer called his
sincerity into question. See United States v. Solis, 299 F.3d
420, 458 (5th Cir. 2002); United States v. Chapa-Garza, 62 F.3d
118, 123 (5th Cir. 1995); United States v. Medina-Anicacio, 325
F.3d 638, 648 (5th Cir. 2003). Having reviewed the record in
this case, we hold that the district court’s refusal to grant the
adjustment was not without any foundation. See U.S.S.G. § 3E1.1,
comment (n.3); Hooten, 933 F.2d at 297-98. Flores also has not
shown reversible error by arguing that he exercised his right to
remain silent with the probation officer because mistakes or
No. 03-10068
-3-
inadvertent omissions during a presentence interview can lead to
additional jail time. See United States v. Kleinebreil, 966 F.2d
945, 953 (5th Cir. 1992).
We note that the district court’s refusal to apply the
adjustment is also supported by the lack of timeliness in Flores
manifesting his acceptance of responsibility. See U.S.S.G.
§ 3E1.1, comment (n.1(h)); United States v. Diaz, 39 F.3d 568,
572 (5th Cir. 1994); see also Bickford v. Int’l Speedway Corp.,
654 F.2d 1028, 1031 (5th Cir. 1981)(reversal is inappropriate if
ruling of the district court can be affirmed on any grounds,
regardless whether those grounds were used by the district
court). Flores’ sentence is AFFIRMED.