Unpublished Disposition, 894 F.2d 410 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 894 F.2d 410 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Ismael CARDENAS, Defendant-Appellant.

No. 89-10183.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 15, 1989.Decided Jan. 22, 1990.

Before SNEED, HUG and LEAVY, Circuit Judges.


MEMORANDUM* 

OVERVIEW

Ismael Cardenas ("Cardenas") appeals from his sentence of 121 months imposed under the 1984 Sentencing Guidelines following his plea of guilty for possession of five kilograms of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1). We affirm.

DISCUSSION

Cardenas contends that the district court erred in denying him a two-point downward adjustment for his acceptance of responsibility under section 3E1.1 of the Sentencing Guidelines. Section 3E1.1 provides:

Acceptance of Responsibility

(a) If the defendant clearly demonstrates a recognition and affirmative acceptance of responsibility for his criminal conduct, reduce the offense level by 2 levels.

(b) A defendant may be given consideration under this section without regard to whether this conviction is based upon a guilty plea or a finding of guilt by the court or jury or the practical certainty of conviction at trial.

(c) A defendant who enters a plea of guilty is not entitled to a sentencing reduction under this section as a matter of right.

Application Note 1 to section 3E1.1 provides that the district court may consider the following factors in assessing "acceptance of responsibility":

(a) voluntary termination or withdrawal from criminal conduct or associations;

(b) voluntary payment of restitution prior to adjudication of guilt;

(c) voluntary and truthful admission to authorities of involvement in the offense and related conduct;

(d) voluntary surrender to authorities promptly after commission of the offense;

(e) voluntary assistance to authorities in the recovery of the fruits and instrumentalities of the offense;

(f) voluntary resignation from the office or position held during the commission of the offense; and

(g) the timeliness of the defendant's conduct in manifesting the acceptance of responsibility.

In addition, while a guilty plea provides some evidence of the defendant's acceptance of responsibility, it does not by itself entitle a defendant to a reduction of sentence. Section 3E1.1, Application Note 3.

The court of appeals is directed to "accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e); United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984) (district court's findings reviewed under deferential, clearly erroneous standard of review).

At the sentencing hearing on April 6, 1989, the district judge rejected Cardenas' assertions that he had accepted responsibility for his criminal act. The district court found that despite the guilty plea, Cardenas' " 'admissions' of guilt [came] perilously close to complete exoneration." In explaining how he came to possess the cocaine, Cardenas told the probation officer charged with the preparation of the presentence report that a person from Los Angeles, California named "Tonyo" called him and asked him to keep a package for him. Cardenas also attempted to explain away other evidence found in the search, i.e., empty kilo wrapper, money on bed, by saying the money was from his other roommates for their share of the rent, despite the fact a person was at his home purchasing drugs at the time of the search. The sentencing court thus agreed with the probation officer that Cardenas had not accepted responsibility within the meaning of section 3E1.1.

Application Note 5 to section 3E1.1 provides that " [t]he sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation." The trial court's findings in this case are not clearly erroneous and the sentence imposed was within his discretion. Accordingly, the sentence is AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3