IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40492
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLIFTON EARL BERNARD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:93-CR-108-1
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February 21, 1997
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
Clifton Earl Bernard was indicted for possession with intent
to distribute cocaine. Following two years as a fugitive,
Bernard pleaded guilty to that offense. In sentencing Bernard,
the district court enhanced his offense level for possession of a
fiream.
Section 2D1.1(b)(1) of the Sentencing Guidelines provides
for a two-point upward adjustment in the offense level in a drug
crime if a dangerous weapon was possessed, "unless it is clearly
*
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that this opinion should not be published and is not precedent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.
No. 96-40492
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improbable that the weapon was connected with the offense."
§ 2D1.1, comment. (n.3); United States v. Mitchell, 31 F.3d 271,
277 (5th Cir.), cert. denied, 115 S. Ct. 455 (1994). Although
Bernard argues that he had no knowledge of the presence of the
gun, he concedes that it was found in the trunk of his car with
the cocaine. The district court did not err in applying the
enhancement.
The district court also did not clearly err in increasing
Bernard’s offense level pursuant to § 3C1.1 of the guidelines
(obstruction of justice) because he failed to appear in court.
United States v. Graves, 5 F.3d 1546, 1555 (5th Cir. 1993), cert.
denied, 114 S. Ct. 1829 (1994).
With respect to his claim that the district court erred in
denying him a reduction in his offense level for acceptance of
responsibility, Application Note 4 to § 3E1.1 of the guidelines
provides that conduct which results in an offense-level
enhancement under § 3C1.1 for obstruction of justice "ordinarily
indicates that the defendant has not accepted responsibility for
his criminal conduct" except in "extraordinary cases in which
adjustments under both §§ 3C1.1 and 3E1.1 may apply." Given the
deferential standard of review applied to acceptance of
responsibility findings and the finding that Bernard had
obstructed justice, the district court did not err in determining
that Bernard was not entitled to a reduction for acceptance of
responsibility. See United States v. Ayala, 47 F.3d 688, 691
(5th Cir. 1995).
AFFIRMED.