USA v. Jerovan Benitez

Filing

UNPUBLISHED OPINION FILED. [09-41232 Affirmed] Judge: JLW , Judge: RHB , Judge: FPB. Mandate pull date is 10/05/2010 for Appellant Jerovan Benitez [09-41232]

USA v. Jerovan Benitez

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Case: 09-41232

Document: 00511233195

Page: 1

Date Filed: 09/14/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41232 S u m m a r y Calendar September 14, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. J E R O V A N BENITEZ, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 1:09-CR-16-1

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* J e r o v a n Benitez appeals the 78-month sentence imposed following his g u ilt y -p le a conviction for possession with intent to distribute 500 grams or more o f cocaine. He contends the district court erred in failing to reduce his

s e n te n c in g offense level for acceptance of responsibility. Benitez asserts that his a lle g e d denial of involvement with the transportation of cocaine was an error in t r a n s la t io n by the interpreter.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Date Filed: 09/14/2010

A lt h o u g h post-Booker, the Sentencing Guidelines are advisory only, and a n ultimate sentence is reviewed for reasonableness under an abuse-ofd is c r e t io n standard, the district court must still properly calculate the guidelines e n te n c in g range for use in deciding on the sentence to impose. Gall v. United S ta te s , 552 U.S. 38, 49-51 (2007). In that respect, its application of the

g u i d e lin e s is reviewed de novo; its factual findings, only for clear error. E.g., U n ite d States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United S ta te s v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). A "factual determination" is used in deciding whether a defendant is e n tit le d , under Guideline § 3E1.1, to a downward adjustment for acceptance of r e s p o n s ib ilit y . United States v. Anderson, 174 F.3d 515, 525 (5th Cir. 1999). "We will affirm a sentencing court's decision not to award a reduction under . . . § 3E1.1 unless it is `without foundation,' a standard of review more d e fe r e n t ia l than the clearly erroneous standard." Id. (quoting and citing United S ta te s v. Hooten, 933 F.2d 293, 297 (5th Cir. 1991)); see also United States v. J u a r e z -D u a r te , 513 F.3d 204, 211 (5th Cir. 2008). " I f a defendant enters a guilty plea prior to trial, truthfully admits the c o n d u c t comprising the offense, and admits, or at least does not falsely deny, any a d d it io n a l relevant conduct for which he is accountable, the court may find s ig n ific a n t evidence of the defendant's acceptance of responsibility." United S ta te s v. Medina-Anicacio, 325 F.3d 638, 648 (5th Cir. 2003); see U.S.S.G. § 3E1.1, cmt. n.3. Pleading guilty, however, does not entitle the defendant to a r e d u c t io n as a matter of right; evidence of the defendant's acceptance of r e s p o n s ib ilit y may be outweighed by conduct inconsistent with such a claim of r e s p o n s ib ilit y . U.S.S.G. § 3E1.1, cmt. n.3. A lt h o u g h Benitez pleaded guilty, the district court was within its bounds o f discretion to find that Benitez had misrepresented facts to minimize his role in the offense. Benitez's assertion that there was merely a misinterpretation in t h e translation of his statement concerning the type of drugs involved was 2

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c o n t r a d ic t e d by the following evidence in the presentence investigation report (P S R ) : he and his brother were observed loading the truck with items taken fr o m the mobile home; a cocaine packaging area was discovered in the mobile h o m e where he slept; and, his brother-in-law stated that Benitez was allowed to p a c k a g e cocaine at their mobile home. Benitez's contention that he was asked t o transfer marijuana from Houston after he arrived there to pick up a W-2 form fr o m an employer was not credible in the light of the Agents' surveillance of the m o b ile home and the interview of Benitez's sister and brother-in-law­the r e s id e n t s of the mobile home. Benitez has not provided any evidence, other than h is own self-serving statements, to rebut the information in the PSR. See United S ta te s v. Solis, 299 F.3d 420, 455 (5th Cir. 2002). Under these circumstances, especially under our extremely deferential s t a n d a r d of review for acceptance-of-responsibility rulings, the district court did n o t err in deciding that Benitez had not sufficiently accepted responsibility to r e c e iv e a downward adjustment under Guideline § 3E1.1. See United States v. W h itfie ld , 590 F.3d 325, 368-69 (5th Cir. 2009), petition for cert. filed, 78 USLW 3 7 1 5 (24 May 2010) (No. 09-1422). AFFIRMED.

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