United States v. Ruiz ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40838
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ESMERALDA RUIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-01-CR-144-1
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December 23, 2002
Before DAVIS, JONES and DENNIS, Circuit Judges.
PER CURIAM:*
Esmeralda Ruiz appeals her sentence following her
guilty-plea conviction for importing marijuana in violation of 21
U.S.C §§ 952(a), 960(a)(1), 960(b)(3) and 18 U.S.C. § 2. Ruiz
argues that the district court erred when it denied a U.S.S.G.
§ 3E1.1 acceptance of responsibility reduction, that the Government
breached the plea agreement when it opposed the acceptance of
responsibility reduction, and that the district court erred when it
*
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this opinion should not be published and is not precedent except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. 01-40838
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denied a minimal participant reduction pursuant to U.S.S.G. § 3B1.2.
To qualify for an acceptance of responsibility reduction
pursuant to U.S.S.G. § 3E1.1, Ruiz must prove that she “clearly
demonstrate[d] acceptance of responsibility for her offense.”
U.S.S.G. § 3E1.1. This court reviews the sentencing court’s
determination of acceptance of responsibility with greater
deference than under the clearly erroneous standard. United States
v. Chapa-Garza, 62 F.3d 118, 122 (5th Cir. 1995). Because Ruiz did
not plead guilty until after a jury was selected, and Ruiz
repeatedly denied the conduct comprising the offense, the district
court did not clearly err in denying Ruiz an acceptance of
responsibility reduction. See United States v. Nguyen, 190 F.3d
656, 659-60 (5th Cir. 1999), and United States v. Diaz, 39 F.3d
568, 570-72 (5th Cir. 1994).
Ruiz also argues that the Government breached the plea
agreement by opposing an acceptance of responsibility reduction.
Ruiz failed to object on this basis at sentencing. Therefore, this
issue is reviewed for plain error. See United States v. Reeves,
255 F.3d 208, 210 (5th Cir. 2001). The plea agreement specified
that the Government agreed to make a recommendation in favor of an
acceptance of responsibility reduction only if Ruiz qualified for
the reduction under the Guidelines. Ruiz has not demonstrated that
she was entitled to an acceptance of responsibility reduction under
the Guidelines. Therefore, Ruiz has not demonstrated “the
underlying facts that establish the breach by a preponderance of
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the evidence.” See United States v. Cantu, 185 F.3d 298, 304-05
(5th Cir. 1999) (citation omitted). Ruiz also argues that she
was merely recruited as a courier for a single smuggling
transaction and argues, therefore, that the trial court committed
error in failing to find her a minimal participant and grant a
four-level reduction in her offense level pursuant to U.S.S.G.
§ 3B1.2. This court reviews for clear error the sentencing court’s
determination that a defendant did not play a minor or minimal role
in the offense. United States v. Zuniga, 18 F.3d 1254, 1261 (5th
Cir. 1994). Ruiz does not provide record references that establish
that she was the “least culpable” of those in a group. Because
Ruiz bears the burden of demonstrating that she is a minimal
participant in the offense, and because Ruiz has set forth nothing
more than a self-serving account of her role, which is unsupported
by record evidence, the district court did not clearly err when it
found Ruiz to be a minor participant, but not a minimal
participant, in the offense. See Zuniga, 18 F.3d at 1261, and
United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989).
Based on the foregoing, the sentence is AFFIRMED.