UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4027
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RIGOBERTO OTAVO MORALES, a/k/a Gerardo Cantu,
a/k/a Victor,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:06-cr-00093-1)
Submitted: August 22, 2007 Decided: October 23, 2007
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Timothy P. Lupardus, Pineville, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, Miller A. Bushong, III,
Assistant United States Attorney, Beckley, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rigoberto Otavo Morales pled guilty pursuant to a written
plea agreement to one count of aiding and abetting the possession
with intent to distribute cocaine, in violation of 18 U.S.C. § 2;
21 U.S.C. § 841(a)(1) (2000). Morales was sentenced by the
district court to sixty-three months’ imprisonment. Finding no
error, we affirm.
On appeal, Morales contends the district court erred in
denying him a two-level decrease under U.S. Sentencing Guidelines
Manual § 3E1.1 (2005). Morales asserts that he demonstrated his
acceptance of responsibility by admitting his guilt “at least four
times” and discussing relevant conduct beyond the charged offense.
He maintains that the only testimony supporting the district
court’s determination was that of the probation officer, and argues
that the “misunderstanding” in his presentence interview was “due
to a language barrier.”
When reviewing the district court’s application of the
Sentencing Guidelines, we review findings of fact for clear error
and questions of law de novo. United States v. Green, 436 F.3d
449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). Section
3E1.1(a) of the Sentencing Guidelines provides for a two-level
decrease to the offense level if a defendant clearly demonstrates
acceptance of responsibility. “However, a defendant who falsely
denies, or frivolously contests, relevant conduct that the court
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determines to be true has acted in a manner inconsistent with
acceptance of responsibility.” USSG § 3E1.1, comment. (n.1(a)).
Because “[t]he sentencing judge is in a unique position to evaluate
a defendant’s acceptance of responsibility,” his determinations are
“entitled to great deference on review.” Id. at comment. (n.5).
The probation officer testified that it is her practice
to ask open-ended questions when interviewing defendants.
Specifically, she asks defendants “to tell [her] in their own words
what occurred, what brought them to the place that they’re in, to
the indictment that they have in the current case.” Morales’s
responses to these open-ended questions were inconsistent with the
evidence proffered by the Government.
After hearing testimony from Morales, the probation
officer, and the interpreter who was present during the presentence
interview, the district court stated that it was “persuaded” by the
fact that the probation officer “ask[ed] very open-ended, non-
leading questions as a part of her practice to give the defendant
an opportunity to make a statement with regard to his role in the
offense and acceptance of responsibility.” The court determined
that rather than truthfully discussing the offense, Morales
responded with false or incomplete information that was intended to
minimize his culpability. Though Morales attempts to explain his
inaccurate answers by referencing his limited ability to speak and
understand English, this explanation is belied by the fact that the
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questions were open-ended and thus did not require specific
answers. Moreover, the probation officer testified that the
interpreter’s services were used when Morales appeared confused.
Under these circumstances, we conclude the district
court’s findings of fact were not clearly erroneous. To the extent
Morales challenges the probation officer’s testimony, witness
credibility is solely within the province of the factfinder and
will not be reassessed on appeal. See United States v. Saunders,
886 F.2d 56, 60 (4th Cir. 1989). Thus, because the district court
properly calculated and considered the advisory guideline range and
weighed the relevant 18 U.S.C. § 3553(a) (2000) factors, we
conclude Morales’s sixty-three month sentence, which was below the
statutory maximum and no greater than the advisory guideline range,
is reasonable. See Green, 436 F.3d at 457; United States v.
Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005); see also Rita v.
United States, 127 S. Ct. 2456, 2462-65 (2007).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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