United States v. Henry , 197 F. App'x 320 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 30, 2006
Charles R. Fulbruge III
Clerk
No. 05-51537
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DARRYL HENRY
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:05-CR-97-2
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Darryl Henry appeals the sentence imposed following his
guilty-plea conviction of aiding and abetting possession with
intent to distribute cocaine base. He argues that the district
court erred by denying him an offense level reduction based on
his acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1.
This court has previously rejected the argument that because
a defendant meets other criteria for acceptance of responsibility
he is entitled to a § 3E1.1 reduction despite his use of illicit
drugs while on release. See United States v. Flucas, 99 F.3d
*
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this opinion should not be published and is not precedent except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. 05-51537
-2-
177, 180 (5th Cir. 1996); United States v. Rickett, 89 F.3d 224,
227 (5th Cir. 1996). In this case, the district court’s ruling
was based on Henry’s continued drug use, as evidenced by urine
test results. Additionally, the district court found that
Henry’s denials regarding his continued drug use were not
credible. Given these facts, it cannot be said that the district
court’s ruling is without foundation. See United States v.
Washington, 340 F.3d 222, 227 (5th Cir. 2003). Accordingly, the
judgment is AFFIRMED.