United States v. Avery Ayers ( 2016 )

Case: 15-20542 Document: 00513690269 Page: 1 Date Filed: 09/23/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-20542 FILED
Summary Calendar September 23, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
AVERY LAMARR AYERS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CR-212-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Avery Lamarr Ayers appeals the 60-month sentence imposed in
connection with his guilty-plea conviction for conspiracy to commit wire fraud.
He contends that the district court erred by denying him a reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1. Ayers argues that he is
entitled to the reduction because he timely pleaded guilty and admitted all of
the essential elements of the conspiracy offense. He asserts that his opposition
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20542 Document: 00513690269 Page: 2 Date Filed: 09/23/2016
No. 15-20542
to the leadership role adjustment does not warrant the denial of a reduction
for acceptance of responsibility.
A defendant may receive a reduction in offense level pursuant to § 3E1.1
if he “clearly demonstrates acceptance of responsibility for his offense.”
§ 3E1.1(a). It is the defendant’s burden to show that the reduction is
warranted. United States v. Watson, 988 F.2d 544, 551 (5th Cir. 1993). “While
the district court’s findings under the sentencing guidelines are generally
reviewed for clear error, a determination whether a defendant is entitled to an
adjustment for acceptance of responsibility is reviewed with even greater
deference.” United States v. Buchanan, 485 F.3d 274, 287 (5th Cir. 2007). We
will affirm the district court’s decision not to grant a defendant a reduction for
acceptance of responsibility unless that decision is “without foundation.”
United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (internal
quotation marks and citation omitted).
Here the presentence report (PSR) provided credible evidence that Ayers
denied relevant conduct. The record supports that Ayers sought to minimize
his role and the duration of his involvement in the fraudulent scheme. See
United States v. Angeles-Mendoza, 407 F.3d 742, 753 (5th Cir. 2005); United
States v. Cabrera, 288 F.3d 163, 177 (5th Cir. 2002). Ayers’s assertions and
objections to the PSR were not competent rebuttal evidence. See United States
v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010). Accordingly, the district court
was entitled to rely upon the PSR and adopt its version of the facts rather than
Ayers’s contrary assertions. See United States v. Ruiz, 621 F.3d 390, 396 (5th
Cir. 2010); United States v. Spires, 79 F.3d 464, 467 (5th Cir. 1996). Ayers has
therefore not demonstrated that the district court’s decision not to grant him
acceptance of responsibility was “without foundation.” See Juarez-Duarte, 513
F.3d at 211. Accordingly, the judgment of the district court is AFFIRMED.
2