United States v. Moutoh

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-21017 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTOPHER C. MOUTOH,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the Southern District of Texas (CR-H-95-8-7) ______________________________________________

July 3, 1996

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Christopher C. Moutoh appeals his sentence for conspiracy to

defraud the United States, in violation of 18 U.S.C. § 286. He

argues that the district court clearly erred in declining to award

a two-level reduction for acceptance of responsibility under

U.S.S.G. § 3E1.1. Moutoh's plea agreement contains a provision

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. waiving his right to appeal, "except the right to appeal an illegal

sentence." That language does not unambiguously preclude our

consideration of Moutoh's argument. See United States v. Baty, 980

F.2d 977, 979 (5th Cir. 1992), cert. denied, 508 U.S. 956, 113 S.

Ct. 2457, 124 L. Ed.2d 672 (1993).

Moutoh's argument that his guilty plea and cooperation are

conclusive of acceptance of responsibility ignores many of the

other provisions in the plea agreement, and is without merit.

Because Moutoh neither truthfully admitted the conduct comprising

the offense nor "came clean" regarding the full extent of his

criminal conduct, the district court did not clearly err by denying

the downward adjustment. See United States v. Diaz, 39 F.3d 568,

572 (5th Cir. 1994).

AFFIRMED.