United States v. Adrian Jiminez-Garcia

445 F. App'x 792
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 20, 2011
Docket10-10983
StatusUnpublished

This text of 445 F. App'x 792 (United States v. Adrian Jiminez-Garcia) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Adrian Jiminez-Garcia, 445 F. App'x 792 (5th Cir. 2011).

Opinion

*793 PER CURIAM: *

Adrian Jiminez-Garcia appeals the sentence imposed following his guilty plea to bank robbery in violation of 18 U.S.C. § 2118. He contends the district court erred by increasing his base offense level by two levels for obstruction of justice, pursuant to Guideline § 3C1.1, and denying a reduction for acceptance of responsibility, pursuant to Guideline § 3E1.1. He further argues that his sentence is substantively unreasonable.

Jiminez was assessed an obstruction of justice enhancement because the evidence submitted to the court by way of a Second Addendum to the Presentencing Report (PSR) and testimony of the investigative case agent showed that Jiminez attempted to impede the investigation and prosecution of the offense of conviction by threatening to kill co-offender Alejandro Holguin (Holguin) and his family if Hol-guin provided any information to the authorities about Jiminez’s involvement in a bank robbery and to harm co-offender Gerardo Castro (Castro) and his mother if Castro talked about Jiminez’s involvement with a bank robbery. The district court’s determination that Jiminez obstructed justice is a factual finding reviewed only for clear error. United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir.2008). “There is no clear error if the district court’s finding is plausible in light of the record as a whole.” Id.

At sentencing, the district court may consider any relevant evidence, provided that the information has “sufficient indicia of reliability to support its probable accuracy.” United States v. Betancourt, 422 F.3d 240, 247 (5th Cir.2005) (internal quotation marks and citation omitted). Pre-sentence reports are generally sufficiently reliable to support a district court’s factual finding. United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995). “If information is presented to the sentencing judge with which the defendant would take issue, the defendant bears the burden of demonstrating that the information cannot be relied upon because it is materially untrue, inaccurate or unreliable.” United States v. Angulo, 927 F.2d 202, 205 (5th Cir.1991); United States v. Ford, 558 F.3d 371, 376-77 (5th Cir.2009).

As he did in the district court, Jiminez maintains that, because Holguin and Castro are not credible, their statements regarding the alleged threats are unreliable and should not be used to support an obstruction of justice enhancement. Jimi-nez’s allegations as to the credibility, or lack thereof, of Holguin and Castro do not satisfy his burden of demonstrating that the information the district court relied on is materially untrue, inaccurate, or unreliable. Jiminez did not testify at his sentencing, nor did he present any evidence to rebut the facts presented in the Second Addendum to the PSR or the case agent’s testimony. Therefore, he has not shown that the district court erred in increasing his offense level for obstruction of justice. See United States v. Moody, 564 F.3d 754, 760 & n. 6 (5th Cir.2009); United States v. Ocana, 204 F.3d 585, 593 (5th Cir.2000); Ford, 558 F.3d at 377.

Jiminez also argues that the district court erred when it denied him a reduction for acceptance of responsibility pursuant to Guideline § 3E1.1. Section 3El.l(a) directs the sentencing court to reduce a defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” § 3El.l(a). However, when the defendant’s conduct has resulted in an obstruction of justice enhancement, as here, the *794 enhancement for obstruction of justice ordinarily “indicates that the defendant has not accepted responsibility for his criminal conduct.” Juarez-Duarte, 513 F.3d at 211 (quoting § 3E1.1, comment, (n.4)). Only in “extraordinary cases” will both adjustments apply. § 3E1.1, comment, (n.4). The defendant bears the burden of proving entitlement to the reduction, United States v. Thomas, 120 F.3d 564, 574-75 (5th Cir.1997), and the denial of credit for acceptance of responsibility will be affirmed “unless it is without foundation.” Juarez-Duarte, 513 F.3d at 211.

Jiminez asserts that, because the conduct on which the obstruction enhancement was based (the threats made to Hol-guin and Castro) occurred before he was arrested, the district court should focus on his actions after his arrest — he clearly accepted responsibility for his offense; he pleaded guilty early in the proceedings; he debriefed with the case agent; and he stipulated to the accuracy of the PSR. Jiminez’s contentions do not sustain his burden of showing entitlement to an acceptance of responsibility adjustment. Jimi-nez does not argue and the record does not support that this case is an extraordinary case where an adjustment for obstruction of justice and acceptance of responsibility should apply. Accordingly, Jiminez has not shown that the district court’s refusal to adjust his offense level for acceptance of responsibility was “without foundation.” See United States v. Solis, 299 F.3d 420, 458 (5th Cir.2002); Juarez-Duarte, 513 F.3d at 211; § 3E1.1, comment, (n.4).

Jiminez further argues that his non-guidelines sentence is substantively unreasonable. In particular, Jiminez asserts that the sentence imposed is greater than necessary to achieve the goals of 18 U.S.C. § 3553(a), that the district court failed to consider all information and arguments offered in mitigation of his punishment, and that there is a disparity between his sentence and the sentences of his co-defendants.

Appellate courts review sentences for reasonableness, applying an abuse of discretion standard of review. See Gall v. United States, 552 U.S. 38, 50-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The court of appeals first inquires whether the district court committed procedural error. Id. at 51, 128 S.Ct. 586. If the sentence imposed is procedurally sound, the reviewing court then will consider whether the sentence is substantive reasonable. Id.

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Related

United States v. Ayala
47 F.3d 688 (Fifth Circuit, 1995)
United States v. Solis
299 F.3d 420 (Fifth Circuit, 2002)
United States v. Smith
417 F.3d 483 (Fifth Circuit, 2005)
United States v. Betancourt
422 F.3d 240 (Fifth Circuit, 2005)
United States v. Smith
440 F.3d 704 (Fifth Circuit, 2006)
United States v. Jones
444 F.3d 430 (Fifth Circuit, 2006)
United States v. Lopez-Velasquez
526 F.3d 804 (Fifth Circuit, 2008)
United States v. Brantley
537 F.3d 347 (Fifth Circuit, 2008)
United States v. Moody
564 F.3d 754 (Fifth Circuit, 2009)
United States v. Key
599 F.3d 469 (Fifth Circuit, 2010)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Luis Eduardo Angulo
927 F.2d 202 (Fifth Circuit, 1991)
United States v. Flora Alicia Ocana
204 F.3d 585 (Fifth Circuit, 2000)
United States v. Juarez-Duarte
513 F.3d 204 (Fifth Circuit, 2008)
United States v. Ford
558 F.3d 371 (Fifth Circuit, 2009)

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Bluebook (online)
445 F. App'x 792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-adrian-jiminez-garcia-ca5-2011.