United States v. May

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 19, 2000
• Docket: 00-40110
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40110 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BARRY MAY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:99-CR-32-1 -------------------- October 18, 2000 Before SMITH, and BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Barry May appeals his sentence following a guilty-plea

conviction for conspiracy to possess methamphetamine with intent

to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

May argues that the district court erred by denying him an

offense level reduction for acceptance of responsibility under

U.S.S.G. § 3E1.1.

This court reviews a district court’s refusal to credit a

defendant’s acceptance of responsibility “with even more

deference than the pure ‘clearly erroneous’ standard.” 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40110 -2-

States v. Flucas, 99 F.3d 177, 180 (5th Cir. 1996); § 3E1.1,

comment. (n.5). Conduct that results in an offense-level

enhancement under § 3C1.1 for obstruction of justice "ordinarily

indicates that the defendant has not accepted responsibility for

his criminal conduct," except in "extraordinary cases in which

adjustments under both §§ 3C1.1 and 3E1.1 may apply." § 3E1.1,

comment. (n.4).

May’s conduct does not support a finding that this is an

extraordinary case in which both adjustments would be

appropriate. See United States v. Ayala, 47 F.3d 688, 691 (5th

Cir. 1995) (holding defendant’s subsequent cooperation and entry

of guilty plea after flight from custody, constituting

obstruction of justice, did not present an extraordinary case).

Furthermore, May’s arguments that he accepted responsibility are

foreclosed by our decision in United States v. Rickett, 89 F.3d

224, 227-28 (5th Cir. 1996), wherein we rejected the same

arguments May now asserts.

Based on the foregoing, the district court did not err and

its judgment is

AFFIRMED.