United States v. Washington

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 98-41590 ____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

PATRICK BOUVIER WASHINGTON,

Defendant - Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (1:98-CR-11-ALL) _________________________________________________________________

July 19, 1999

Before WIENER, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Patrick Bouvier Washington appeals his sentence, following a

guilty-plea conviction for bank fraud under 18 U.S.C. § 1344(a).

First, Washington contests his U.S.S.G. § 3C1.1 obstruction of

justice enhancement, a factual finding we review only for clear

error. E.g., United States v. Upton, 91 F.3d 677, 687 (5th Cir.

1996). We find none, given Washington’s refusal to provide a

handwriting exemplar even in the face of a grand-jury subpoena and

court order. Other circuits have found such refusal to constitute

§ 3C1.1 obstruction of justice. See United States v. Valdez, 16

F.3d 1324, 1335 (2nd Cir.), cert. denied, 513 U.S. 810 (1994);

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. United States v. Ruth, 65 F.3d 599, 608 (7th Cir. 1995); United

States v. Reyes, 908 F.2d 281, 290 (8th Cir. 1990), cert. denied,

499 U.S. 908 (1991); United States v. Taylor, 88 F.3d 938, 943-44

(11th Cir. 1996); cf. Upton, 91 F.3d at 688 (refusal under grand

jury subpoena to produce business records warrants § 3C1.1

enhancement).

Second, Washington challenges the denial of a § 3E1.1

acceptance-of-responsibility reduction, a determination reviewed

“even more deferential[ly] than a pure ‘clearly erroneous’

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

1994), and on which the defendant has the burden of proof, United

States v. Tremelling, 43 F.3d 148, 152 (5th Cir. 1995). We find no

reversible error, given Washington’s obstruction of justice,

failure to plead guilty until a jury was impaneled, and denial of

relevant conduct described in his Presentence Report. See § 3E1.1,

application note 4 (obstruction of justice under § 3C1.1 normally

shows lack of acceptance of responsibility); id., application note

3 (guilty pleas prior to trial show acceptance of responsibility,

and failure to admit relevant conduct shows lack of acceptance).

AFFIRMED

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