United States v. Almeida

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 15, 1998
• Docket: 18-30388
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-40942 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESSIE A. ALMEIDA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. L-93-CR-73-3 - - - - - - - - - - April 10, 1998

Before JOLLY, JONES, and DUHÉ, Circuit Judges.

PER CURIAM:*

Jessie A. Almeida pleaded guilty to possession with intent

to distribute approximately 490 pounds of marijuana. In this

appeal, Almeida argues primarily that the district court erred in

denying him a reduction in his offense level for acceptance of

responsibility. This court accords "great deference" to the

sentencing court's "refusal to credit a defendant's acceptance of

responsibility." United States v. Vital, 68 F.3d 114, 121 (5th

Cir. 1995) (internal quotation omitted).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 97-40942 -2-

At sentencing, the district court clearly did not believe

Almeida’s assertion that he was simply attempting to help a

friend with a broken vehicle. The district court carefully

examined the circumstances surrounding the presentence interview

and found that Almeida falsely denied his criminal involvement to

the probation officer and in the sentencing proceeding. The

district court did not clearly err in refusing to adjust

Almeida's offense level for acceptance of responsibility. See

Vital, 68 F.3d at 121.

Almeida also complains that his counsel was not present at

the interview with the probation officer referred to by the

district court. Almeida does not have a constitutional right to

counsel during the presentence interview. United States v.

Bounds, 985 F.2d 188, 194 (5th Cir. 1993). Under Fed. R. Crim.

P. 32(b)(2), "[o]n request, the defendant’s counsel is entitled

to notice and a reasonable opportunity to attend any interview of

the defendant by a probation officer in the course of a

presentence investigation." In this case, the probation officer

attempted to notify counsel of the interview on the day it was to

occur, but was unsuccessful. It is not necessary to determine if

this was sufficient under rule 32 because at sentencing the

district court disregarded all of Almeida’s prior statements,

written and oral, and gave Almeida the opportunity to accept

responsibility with counsel present. This Almeida did not do.

AFFIRMED.