United States v. Brown ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 02-40402
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELVIN J. BROWN,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
U.S.D.C. No. 4:01-CR-73-ALL
_________________________________________________________________
October 14, 2002
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Kelvin James Brown pleaded guilty to possession with
intent to distribute marijuana and being a felon in possession of
a firearm. Brown appeals his sentence for these offenses. Brown
argues that his offense level should not have been increased for
*
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this opinion should not be published and is not precedent except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.
assaulting a law enforcement officer. Brown also argues that he
should not have been denied an offense level reduction for
acceptance of responsibility. We review the district court’s
interpretation of the sentencing guidelines de novo and the
district court’s factual findings at sentencing for clear error.
United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 19 94).
With respect to the assault, Brown testified that he did
not reach for his pistol, and Trooper Lubbe testified that Brown
did reach for his weapon in an attempt to kill him. The district
court’s decision to credit the testimony of Lubbe cannot be clear
error. Anderson v. City of Bessemer City, 470, U.S. 564, 573-74
(1985). The district court did not err in imposing the three level
increase to Brown’s offense level for assaulting a law enforcement
officer.
In denying Brown credit for acceptance of responsibility,
the district court specifically found that Brown’s denial of the
assault was a denial of relevant conduct. This is a valid reason
for denying the offense level reduction for acceptance of
responsibility. See United States v. Pierce 237 F.3d 693, 695 (5th
Cir. 2001). The district cort did not err in denying the reduction
for acceptance of responsibility.
AFFIRMED.
2