United States v. Kinney Palmer ( 2019 )

Case: 18-11250 Document: 00515163481 Page: 1 Date Filed: 10/17/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-11250 FILED
Summary Calendar October 17, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KINNEY LEE PALMER,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CR-88-1
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Kinney Lee Palmer appeals the 115-month, within-guidelines sentence
imposed by the district court following his guilty-plea conviction for receiving
child pornography. He argues that the district court erred by (1) denying a
U.S.S.G. § 3E1.1(b) reduction, which reduction the Government opposed, and
(2) imposing two criminal history points under U.S.S.G. § 4A1.1(e) on the
ground that two of Palmer’s convictions for aggravated assault under Texas
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 18-11250
law constituted crimes of violence as defined by U.S.S.G. § 4B1.2(a). Palmer
correctly concedes that the latter argument is foreclosed by our binding
precedent in United States v. Guillen-Alvarez, 489 F.3d 197, 199-200 (5th Cir.
2007). See United States v. Setser, 607 F.3d 128, 131 (5th Cir. 2010).
In reviewing a district court’s denial of a § 3E1.1(b) adjustment, we
review the district court’s interpretation of the guideline de novo and its factual
findings under a “standard even more deferential than a purely clearly
erroneous standard.” United States v. Silva, 865 F.3d 238, 244 (5th Cir. 2017)
(internal quotation marks and citation omitted). Under that more deferential
standard, a defendant must “show that the district court’s denial of a reduction
for acceptance of responsibility was without foundation.” United States v.
Lord, 915 F.3d 1009, 1020 (5th Cir. 2019).
“[A] defendant who pleads guilty, initially admitting the conduct
underlying his guilty plea, but then later attempts to withdraw his plea,
asserting innocence, does not demonstrate ‘sincere contrition’ for purposes of
§ 3E1.1.” Id. (citations omitted). In attempting to distinguish Lord, Palmer
repeatedly insists that he did not assert his innocence in either of his motions
to withdraw his guilty plea; however, the record confutes his representations
and plainly reflects that he asserted his innocence in both motions.
While the district court (and, to some extent, the Government) focused
on the resources spent by the Government in responding to Palmer’s post-plea
motions, the fact remains that the Government validly opposed the § 3E1.1(b)
reduction because, inter alia, Palmer’s motions to withdraw his guilty plea
were inconsistent with his acceptance of responsibility. See id. We need not
consider Palmer’s argument under United States v. Castillo, 779 F.3d 318, 324
(5th Cir. 2015), that the Government’s expenditure of resources on post-plea
litigation cannot support the denial of a § 3E1.1(b) reduction; even if Palmer
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No. 18-11250
were correct, remand would be futile since we cannot force the Government to
move for a § 3E1.1(b) reduction when it has cited a valid reason for refusing to
do so. See United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000).
We AFFIRM the judgment of the district court. The Federal Public
Defender is cautioned not to misrepresent the record in his brief.
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