United States v. Espinoza ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50552
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO ESPINOZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-1420-4-PRM
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March 7, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Francisco Espinoza appeals his sentence, following his
guilty-plea conviction of conspiracy to possess cocaine with
intent to distribute, a violation of 21 U.S.C. § 846.
Espinoza argues that the district court clearly erred in
denying him a three-level reduction under U.S.S.G. § 3E1.1. The
district court’s determination that Espinoza failed to show that
he had accepted responsibility was not “without foundation.”
See United States v. Brace, 145 F.3d 247, 264 (5th Cir. 1998)
*
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that this opinion should not be published and is not precedent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. 02-50552
-2-
(en banc). Although Espinoza, in pleading guilty, agreed that
most of the factual basis that was read at his rearraignment was
correct, he later moved to withdraw his guilty plea, asserting
his innocence. He then continued to deny that he even knew that
cocaine was the drug involved in the offense. This conduct did
not amount to “sincere contrition regarding the full extent
of . . . [his criminal] conduct.” See United States v. Diaz,
39 F.3d 568, 572 (5th Cir. 1994) (internal quotation marks and
citation omitted).
Espinoza also contends that the district court erred in
denying him a two-level reduction under U.S.S.G. § 3B1.2(b) for
“minor” participation in the offense. He emphasizes that he only
provided temporary storage for the 1,188 kilograms of cocaine,
whereas “average” participants were responsible for arranging the
transportation of the cocaine load into and out of the warehouse
he had rented. The district court did not clearly err in
determining that Espinoza’s role was “fairly important.” See
United States v. Leal-Mendoza, 281 F.3d 473, 477 (5th Cir. 2000).
Within the context of transporting the single load of cocaine,
Espinoza failed to sustain his burden of showing that he was
“substantially less culpable” than the average participant.
See United States v. Garcia, 242 F.3d 593, 598-99 (5th Cir.
2001); United States v. Marmolejo, 106 F.3d 1213, 1217
(5th Cir. 1997).
The conviction and sentence are AFFIRMED.