United States v. Carlos Lopez

Case: 09-10211 Document: 00511056967 Page: 1 Date Filed: 03/19/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 19, 2010
No. 09-10211
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CARLOS FABIAN LOPEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CR-125-3
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Carlos Fabian Lopez appeals the sentence imposed following his guilty
plea conviction for possession with intent to distribute 50 grams or more of
methamphetamine. Lopez argues that the district court erred by refusing to
grant him a reduction for acceptance of responsibility. He maintains that the
information in the presentence report (PSR) concerning his interview with the
probation officer amounted only to a showing that he failed to admit relevant
conduct, and, therefore, was insufficient to show that he was not entitled to a
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10211 Document: 00511056967 Page: 2 Date Filed: 03/19/2010
No. 09-10211
reduction for acceptance of responsibility. He contends that the affidavit he filed
sufficiently cured any failure to accept responsibility during his interview with
the probation officer and that the district court erred by not allowing him to cure
his failure to accept responsibility in that manner. Lopez asserts that the
Government agreed that he was entitled to a reduction for acceptance of
responsibility. He argues that the hearsay evidence in the PSR was an
insufficient basis for the denial of a reduction for acceptance of responsibility.
While Lopez pleaded guilty and truthfully admitted his offense conduct in
his factual resume, Lopez denied that he knowingly committed the offense of
conviction and denied his offense conduct during his interview with the
probation officer. Although Lopez admitted in his affidavit that he helped his
co-defendants commit the offense and commented about trying to make easy
money, Lopez did not make any specific factual admissions regarding his offense
conduct. Given these facts, the burden placed on Lopez to demonstrate
acceptance of responsibility, and the great deference given to a district court’s
determination that a defendant has not accepted responsibility, the district
court’s ruling that Lopez had not accepted responsibility was not clearly
erroneous or without foundation. See United States v. Cabrera, 288 F.3d 163,
175-77 (5th Cir. 2002).
Lopez’s argument that his interview with the probation officer amounted
only to a failure to admit relevant conduct is incorrect; the PSR shows that
Lopez denied knowingly committing his offense conduct during the interview.
Lopez’s assertion that the Government supported his receiving a reduction for
acceptance of responsibility is refuted by the record. Lopez’s contention that the
district court improperly relied upon hearsay contained in the PSR regarding his
interview with the probation officer is also without merit. See Cabrera, 288 F.3d
at 173-74; United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995).
AFFIRMED.
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