United States v. Joshua Lohmann ( 2010 )

Case: 09-10217 Document: 00511025621 Page: 1 Date Filed: 02/11/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 11, 2010
No. 09-10217
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSHUA LOHMANN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 4:08-CR-147-4
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Joshua Lohmann pleaded guilty to conspiring to distribute 50 grams or
more of a mixture and substance containing a detectable amount of metham-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-10217 Document: 00511025621 Page: 2 Date Filed: 02/11/2010
No. 09-10217
phetamine. He appeals his sentence, arguing that the district court erred by de-
nying credit for acceptance of responsibility under U.S.S.G. § 3E1.1.
Although following United States v. Booker, 543 U.S. 220 (2005), the sen-
tencing guidelines are advisory only, and we review an ultimate sentence for rea-
sonableness under an abuse-of-discretion standard, the district court still must
properly calculate the guideline-sentencing range. Gall v. United States, 552
U.S. 38, 51 (2007). Generally, we review the district court’s application of the
guidelines de novo and its factual findings for clear error. See United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005).
We accord “even greater deference” than under clear error review to the
refusal to grant a reduction for acceptance of responsibility. United States v.
Buchanan, 485 F.3d 274, 287 (5th Cir. 2007). We will not reverse a denial under
§ 3E.1.1 unless the decision is “without foundation.” United States v. Juarez-
Duarte, 513 F.3d 204, 211 (5th Cir.), cert. denied, 128 S. Ct. 2452 (2008).
Lohmann contends that the district court erred by denying credit for ac-
ceptance of responsibility based on his objection to the drug quantity determin-
ation set forth in the presentence report (“PSR”). In the district court, Lohmann
objected to being held accountable for 23 ounces of methamphetamine on the
strength of statements made by co-defendant Cory Mitchell, who indicated that
he had obtained methamphetamine from Lohmann’s mother and that he had
then distributed that methamphetamine to Lohmann. The PSR also reported
that Lohmann had made a statement denying that his mother had been involved
in methamphetamine distribution.
As Lohmann notes, there was testimony at sentencing from a law enforce-
ment officer to the effect that it was not feasible for drug transactions between
Mitchell and Lohmann’s mother to have occurred. The district court, however,
in overruling Lohmann’s objection to drug quantity, implicitly determined that
Mitchell’s account was accurate. The court’s view of the evidence regarding drug
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No. 09-10217
quantity is plausible in light of the record, which includes Mitchell’s statements
as reported in the PSR and other evidence that Lohmann’s mother trafficked in
methamphetamine. See United States v. Burns, 526 F.3d 852, 859 (5th Cir.
2008); United States v. Caldwell, 448 F.3d 287, 291 n.1 (5th Cir. 2006). The de-
nial of a reduction for acceptance of responsibility is not “without foundation.”
See Juarez-Duarte, 513 F.3d at 211.
Accordingly, the judgment is AFFIRMED. Lohman’s motion for substitute
counsel, which was filed after the completion of briefing, is DENIED.
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