United States v. Smith

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30789 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES E. SMITH,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 99-CR-17-ALL - - - - - - - - - - December 14, 1999

Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:*

James E. Smith appeals his guilty-plea conviction and

sentence for possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1). He argues that the district

court erred by not granting him a downward adjustment for

acceptance of responsibility.

The district court’s determination regarding acceptance of

responsibility will be upheld unless it is without foundation.

See United States v. Anderson, 174 F.3d 515, 525 (5th Cir. 1999).

The district court credited testimony at the sentencing hearing

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-30789 -2-

that Smith intentionally possessed the gun and deliberately shot

Hokim Emile. Smith maintained that he found the gun on the

ground and it accidentally discharged. Considering the highly

deferential standard of review and the district court’s unique

ability to observe the witnesses and weigh their credibility

regarding the conflicting accounts of the events at issue, the

evidence was sufficient to support the district court's denial of

the adjustment for acceptance of responsibility. See U.S.S.G.

§ 3E1.1, comment. (n.1(a)); United States v. Spires, 79 F.3d 464,

467 (5th Cir. 1996); United States v. Kinder, 946 F.2d 362, 367

(5th Cir. 1991). Therefore, the judgment of the district court

is AFFIRMED.

AFFIRMED.