United States v. Brown

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________

No. 02-40402 Summary Calendar

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KELVIN J. BROWN,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas U.S.D.C. No. 4:01-CR-73-ALL

_________________________________________________________________ October 14, 2002

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

Kelvin James Brown pleaded guilty to possession with

intent to distribute marijuana and being a felon in possession of

a firearm. Brown appeals his sentence for these offenses. Brown

argues that his offense level should not have been increased for

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. assaulting a law enforcement officer. Brown also argues that he

should not have been denied an offense level reduction for

acceptance of responsibility. We review the district court’s

interpretation of the sentencing guidelines de novo and the

district court’s factual findings at sentencing for clear error.

United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 19 94).

With respect to the assault, Brown testified that he did

not reach for his pistol, and Trooper Lubbe testified that Brown

did reach for his weapon in an attempt to kill him. The district

court’s decision to credit the testimony of Lubbe cannot be clear

error. Anderson v. City of Bessemer City, 470, U.S. 564, 573-74

(1985). The district court did not err in imposing the three level

increase to Brown’s offense level for assaulting a law enforcement

officer.

In denying Brown credit for acceptance of responsibility,

the district court specifically found that Brown’s denial of the

assault was a denial of relevant conduct. This is a valid reason

for denying the offense level reduction for acceptance of

responsibility. See United States v. Pierce 237 F.3d 693, 695 (5th

Cir. 2001). The district cort did not err in denying the reduction

for acceptance of responsibility.

AFFIRMED.