United States v. Almeida ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40942
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESSIE A. ALMEIDA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-93-CR-73-3
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April 10, 1998
Before JOLLY, JONES, and DUHÉ, Circuit Judges.
PER CURIAM:*
Jessie A. Almeida pleaded guilty to possession with intent
to distribute approximately 490 pounds of marijuana. In this
appeal, Almeida argues primarily that the district court erred in
denying him a reduction in his offense level for acceptance of
responsibility. This court accords "great deference" to the
sentencing court's "refusal to credit a defendant's acceptance of
responsibility." United States v. Vital, 68 F.3d 114, 121 (5th
Cir. 1995) (internal quotation omitted).
*
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that this opinion should not be published and is not precedent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. 97-40942
-2-
At sentencing, the district court clearly did not believe
Almeida’s assertion that he was simply attempting to help a
friend with a broken vehicle. The district court carefully
examined the circumstances surrounding the presentence interview
and found that Almeida falsely denied his criminal involvement to
the probation officer and in the sentencing proceeding. The
district court did not clearly err in refusing to adjust
Almeida's offense level for acceptance of responsibility. See
Vital, 68 F.3d at 121.
Almeida also complains that his counsel was not present at
the interview with the probation officer referred to by the
district court. Almeida does not have a constitutional right to
counsel during the presentence interview. United States v.
Bounds, 985 F.2d 188, 194 (5th Cir. 1993). Under Fed. R. Crim.
P. 32(b)(2), "[o]n request, the defendant’s counsel is entitled
to notice and a reasonable opportunity to attend any interview of
the defendant by a probation officer in the course of a
presentence investigation." In this case, the probation officer
attempted to notify counsel of the interview on the day it was to
occur, but was unsuccessful. It is not necessary to determine if
this was sufficient under rule 32 because at sentencing the
district court disregarded all of Almeida’s prior statements,
written and oral, and gave Almeida the opportunity to accept
responsibility with counsel present. This Almeida did not do.
AFFIRMED.