United States v. Lopez-Lopez

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 2001
• Docket: 00-50565
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50565 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

DEMETRIO LOPEZ-LOPEZ, also known as Rambo,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. DR-98-CR-375-2 -------------------- June 13, 2001

Before WIENER, DEMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Demetrio Lopez-Lopez (Lopez) pleaded guilty to transporting

illegal aliens within the United States and aiding and abetting

in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) & 18 U.S.C. § 2.

Lopez argues on appeal that the district court erred when it

denied him a downward adjustment for acceptance of responsibility

pursuant to U.S.S.G. § 3E1.1.

Whether a defendant has sufficiently demonstrated acceptance

of responsibility is a factual question, and the standard of

review is even more deferential than clear error. See United

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50565 -2-

States v. Spires, 79 F.3d 464, 467 (5th Cir. 1996). In the

absence of rebuttal evidence, the district court may adopt

factual findings and conclusions in the presentence investigation

report (PSR) to resolve issues in dispute. See United States v.

Ayala, 47 F.3d 688, 690 (5th Cir. 1995).

The PSR recommended denial of a downward adjustment for

acceptance of responsibility because Lopez maintained through his

statements to investigation agents and to the probation officer

that he was not involved in any alien smuggling. The district

court at sentencing heard and considered Lopez’ argument, and

also allowed him to be questioned by his attorney. Lopez

asserted that he was accepting responsibility for transporting

illegal aliens, but that he was not responsible for smuggling 126

aliens.

The record reflects that the district judge considered the

positions of both parties and chose to adopt the PSR. We owe

deference to the sentencing court, and based on the record, the

denial of a downward adjustment for acceptance of responsibility

was not clearly erroneous. See United States v. Franks, 46 F.3d

402, 405 (5th Cir. 1995); § 3E1.1, comment. (n.5).

AFFIRMED.