United States v. Smith

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-51052 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LAFREDRICK DONTAI SMITH, also known as LaFredrick Donta Smith,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-01-CR-38-ALL -------------------- June 18, 2002

Before HIGGINBOTHAM, DAVIS and, EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

LaFredrick Smith appeals his sentence following his guilty

plea to possession with the intent to distribute crack cocaine.

He argues that the district court erred in denying him credit for

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.

Challenges to the denial of a U.S.S.G. § 3E1.1 reduction are

reviewed even more deferentially than a pure “clearly erroneous”

standard, United States v. Gonzales, 19 F.3d 982, 983 (5th Cir.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-51052 -2-

1994), and the defendant has the burden of proof, United States

v. Tremelling, 43 F.3d 148, 152 (5th Cir. 1995). We find that

the district court was aware that it had the discretion to award

Smith credit for acceptance of responsibility despite enhancing

his sentence pursuant to U.S.S.G. § 3C1.1 for obstructing

justice. We further hold that the district court did not err in

refusing to award Smith a U.S.S.G. § 3E1.1 credit, because his

case was not an “extraordinary” one under which adjustments

pursuant to U.S.S.G. §§ 3C1.1 and 3E1.1 might apply. See

U.S.S.G. § 3E1.1, comment. (n. 4).

AFFIRMED.