United States v. D'Antorio

9 F. App'x 625

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 10, 2001
• Docket: No. 00-50280; D.C. No. CR-99-0135-GLT-01
• Status: Published

Opinion

MEMORANDUM²

Michael D’Antorio appeals the thirty-three month sentence imposed following his guilty plea conviction for fraudulent use of an access device in violation of 18 U.S.C. § 1029(a)(2). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

D’Antorio contends that the district court erred by denying him a two-level adjustment for acceptance of responsibility pursuant to section 3El.l(a) of the Sentencing Guidelines. We review for clear error, United States v. Bazuaye, 240 F.3d 861, 863 (9th Cir.2001), and find none.

Notwithstanding D’Antorio’s timely admission of guilt and expression of remorse, the district court ruled against the adjustment based on the nature of the newspaper articles found in D’Antorio’s jail cell and the nature of his prior activities in prison. The finding has foundation in the record. We cannot say that the district court clearly erred by denying the adjustment. See United States v. Cooper, 912 F.2d 344, 345 (9th Cir.1990) (stating the determination of a sentencing judge will not be disturbed unless it is without foundation); see also U.S. Sentencing Guidelines Manual § 3E1.1, cmt. n. 3 (1998) (stating that significant evidence a defendant has accepted responsibility can be outweighed by inconsistent conduct).

AFFIRMED.

2 . This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.