United States v. Rodriguez ( 2023 )

Case: 22-50018 Document: 00516654146 Page: 1 Date Filed: 02/23/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50018
Summary Calendar FILED
February 23, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Ernesto Fermin Rodriguez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CR-207-1
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Ernesto Fermin Rodriguez pleaded guilty to possessing a firearm after
being convicted of a felony, and he was sentenced to 120 months of
imprisonment and three years of supervised release. Rodriguez challenges
his sentence on appeal, arguing that he was entitled to a reduction in his
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50018 Document: 00516654146 Page: 2 Date Filed: 02/23/2023
No. 22-50018
sentence pursuant to U.S.S.G. § 3E1.1 because he timely pleaded guilty and
accepted responsibility for his firearm offense.
The district court declined to award an adjustment for acceptance of
responsibility because Rodriguez had not voluntarily terminated and
withdrawn from criminal conduct. See § 3E1.1 comment. (n.1(B)). The
district court’s decision was supported by sufficiently reliable and unrebutted
evidence in the presentence report that (1) Rodriguez assaulted another
inmate at the detention facility where he was held following his arrest in
connection with the underlying offense and (2) during a random search of
Rodriguez’s cell at the detention facility, staff found a toothbrush sharpened
at one end—a shank— under Rodriguez’s pillow. See United States v. Harris,
702 F.3d 226, 230-31 (5th Cir. 2012); see also United States v. Peterson, 977
F.3d 381, 397 (5th Cir. 2020). Accordingly, the district court’s determination
to deny the adjustment under § 3E1.1(a) was not without foundation. See
United States v. Hinojosa-Almance, 977 F.3d 407, 411 (5th Cir. 2020) (“It is
not reversible error for the district court to deny a § 3E1.1(a) reduction where
the defendant broke the law while on bond, even where those violations were
not directly related to the underlying criminal conduct with which he was
charged.”); see also United States v. Watkins, 911 F.2d 983, 985 (5th Cir.
1990).
The district court’s judgment is AFFIRMED.
2