United States v. De La Fuente ( 1999 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 98-40476
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN FRANCISCO DE LA FUENTE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(M-97-CR-278-1)
August 9, 1999
Before EMILIO M. GARZA and PARKER, Circuit Judges, and FITZWATER,* District Judge.
PER CURIAM:**
Juan Francisco De La Fuente appeals his sentence following a guilty plea conviction of
conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846.
De La Fuente argues that the district court clearly erred by increasing his offense level
pursuant to § 3C1.1 of the United States Sentencing Guidelines based on its finding that he
obstructed justice. The sentencing court’s finding that De La Fuente obstructed justice when he
testified at the trial of his co-defendant, Jesus Gonsalez-Torres, was supported by the record evidence
and encompassed all of the factual predicates necessary for a finding of perjury. See United States
v. Como, 53 F.3d 87, 89 (5th Cir. 1995). The district court did not clearly err.
De La Fuente also argues that the district court erred by denying a downward adjustment in
his offense level for acceptance of responsibility pursuant to § 3E1.1 of the United States Sentencing
*
District Judge of the Northern District of Texas, sitting by designation.
**
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Guidelines. Conduct which results in an offense-level enhancement under § 3C1.1 for obstruction
of justice “ordinarily indicates that the defendant has not accepted responsibility for his criminal
conduct” except in “extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may
apply.” U.S.S.G. § 3E1.1, comment. (n.4). De La Fuente does not contend, and the record does not
indicate, that this is an extraordinary case in which adjustments for both obstruction of justice and
acceptance of responsibility would be appropriate. See United States v. Ayala, 47 F.3d 688, 691 (5th
Cir. 1995). In light of the district court’s finding that De La Fuente obstructed justice, as well as the
deferential standard of review applied to acceptance-of-responsibility findings, we conclude that the
district court did not err in determining that De La Fuente was not entitled to a reducti on in his
offense level for acceptance of responsibility. See United States v. Bermea, 30 F.3d 1539, 1577 (5th
Cir. 1994) (“The defendant bears t he burden of demonstrating to the sentencing court that he is
entitled to a downward adjustment for acceptance of responsibility, and we review the sentencing
court’s acceptance of responsibility determination with even more deference that under the pure
clearly erroneous standard.”).
AFFIRMED.
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