United States v. Henderson , 83 F. App'x 677 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 19, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10346
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM HENDERSON, also known as Keg,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CR-00174-11
Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
William Henderson appeals his sentence following his
guilty-plea conviction of conspiracy to distribute more than 5
kilograms of cocaine and 50 grams or more of a mixture containing
cocaine base. He argues that the district court erred in refusing
to adjust his offense level downward by three levels for acceptance
of responsibility under U.S.S.G. § 3E1.1 because he refused to
*
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that this opinion should not be published and is not precedent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.
discuss with the probation officer his offense conduct or criminal
history and because he timely pleaded guilty.
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. 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. Henderson also has not
shown reversible error by arguing that U.S.S.G § 3E1.1 recognizes
his Fifth Amendment right to remain silent with the probation
officer. See United States v. Kleinebreil, 966 F.2d 945, 953 (5th
Cir. 1992). The district court’s judgment is AFFIRMED.
2