United States v. Smith , 78 F. App'x 407 ( 2003 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                 October 22, 2003
    Charles R. Fulbruge III
    Clerk
    No. 03-30336
    Conference Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    BRANDON J. SMITH,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC No. 02-CR-50076-ALL
    --------------------
    Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
    PER CURIAM:*
    Brandon J. Smith pleaded guilty to an indictment charging
    him for being a felon in possession of a firearm and was
    sentenced to a 41-month term of imprisonment and to a three-year
    period of supervised release.   The district court overruled
    Smith’s objection to the probation officer’s recommendation that
    an adjustment in offense level for acceptance of responsibility
    be denied because Smith had denied falsely the offense conduct.
    To obtain a two-level reduction for acceptance of
    responsibility, a defendant must clearly demonstrate acceptance
    *
    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    this opinion should not be published and is not precedent except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. 03-30336
    -2-
    of responsibility for his offense.    U.S.S.G. § 3E1.1(a); United
    States v. Lghodaro, 
    967 F.2d 1028
    , 1031 (5th Cir. 1992).       The
    defendant must truthfully admit the conduct comprising the
    offense of conviction.   See U.S.S.G. § 3E1., comment. (n.1(a)).
    This court reviews a district court’s finding on acceptance of
    responsibility “under a standard of review even more deferential
    than a pure clearly erroneous standard.”    United States v.
    Gonzales, 
    19 F.3d 982
    , 983 (5th Cir. 1994) (internal citation and
    quotation omitted).
    Smith argues that he admitted his involvement in the offense
    at the change-of-plea hearing and at the sentencing hearing and
    that the district court gave too much weight to Smith’s false
    statements during his interview with the probation officer.
    Smith contends that he was merely exercising his constitutional
    right against self-incrimination and that he should not be
    punished because he believed naively that he could still proceed
    to trial after pleading guilty.
    The adjustment for acceptance of responsibility is in the
    nature of a reward, not a punishment, and does not unduly burden
    constitutional privileges.    See United States v. Mourning, 
    914 F.2d 699
    , 707 (5th Cir. 1990).    The district court did not
    clearly err in giving weight to the false statements made by
    Smith to the probation officer.    Under the deferential standard
    applicable to the district court’s ruling, there is no basis for
    reversal.   The judgment is AFFIRMED.
    

Document Info

Docket Number: 03-30336

Citation Numbers: 78 F. App'x 407

Judges: Jolly, King, Per Curiam, Stewart

Filed Date: 10/21/2003

Precedential Status: Non-Precedential

Modified Date: 8/1/2023