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United States v. Chavez ( 2021 )


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  • Case: 20-10503     Document: 00515810638         Page: 1     Date Filed: 04/06/2021
United States Court of Appeals
for the Fifth Circuit                            United States Court of Appeals
Fifth Circuit
FILED
April 6, 2021
No. 20-10503
Summary Calendar                      Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Felipe Chavez,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-362-16
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Felipe Chavez pleaded guilty to conspiracy to possess with intent to
distribute methamphetamine. The district court sentenced Chavez to 188
months of imprisonment, which was the low end of the guidelines range.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10503      Document: 00515810638           Page: 2    Date Filed: 04/06/2021
No. 20-10503
In his sole issue on appeal, Chavez argues that the district court erred
by denying him a reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1. He argues that a reduction was warranted because he admitted that
the factual resume was true and took responsibility for the charged criminal
conduct. While recognizing that Chavez admitted his guilt, the presentence
report (PSR) recommended against acceptance of responsibility on the
ground that Chavez violated the conditions of pretrial release by submitting
eight urine specimens that tested positive for marijuana and then denying any
drug usage.
There was neither a factual nor legal problem with the district court’s
refusal to award Chavez a reduction for acceptance of responsibility. Chavez
argues that, aside from “hearsay,” no evidence supported the PSR’s
conclusion that he tested positive for drug use while on pretrial release. But
the district court was entitled to rely on the unrebutted facts in the PSR
detailing Chavez’s positive drug tests. United States v. Cabrera,
    288 F.3d 163
    ,
173–74 (5th Cir. 2002). Hearsay is allowed during sentencing proceedings,
so long as the evidence is reliable. United States v. West,
    58 F.3d 133
    , 138 (5th
Cir. 1995). Chavez identifies no reason why the results of multiple drug tests,
conduct under the auspices of the court’s pretrial services office, are not
reliable.
Chavez’s repeated drug use while on pretrial release allowed the
district court to deny a reduction for acceptance of responsibility. Although
a guilty plea is “significant evidence” of a defendant’s acceptance of
responsibility, it does not automatically entitle the defendant to a reduction.
U.S.S.G. § 3E1.1, comment. (n.3). We have consistently upheld the denial
of a reduction for acceptance of responsibility based on the defendant’s
failure to refrain from criminal conduct while on pretrial release. See United
States v. Rickett,
    89 F.3d 224
    , 227 (5th Cir. 1996).
2
Case: 20-10503   Document: 00515810638        Page: 3   Date Filed: 04/06/2021
No. 20-10503
The district court’s judgment is AFFIRMED.
3