United States v. Longoria

               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 99-20600
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

LEONARD LONGORIA,

                                          Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-98-CR-389-6
                      --------------------
                          June 14, 2000

Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

     Leonard Longoria appeals the sentence imposed by the

district court following his guilty-plea conviction for

conspiracy to transport and harbor undocumented aliens.   We

review the district court’s application of the Sentencing

Guidelines de novo, and we review the court’s factual findings

for clear error.    United States v. Edwards, 65 F.3d 430, 432 (5th

Cir. 1995).




     *
        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that this opinion should not be published and is not precedent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. 99-20600
                                -2-

     Longoria argues that the district court clearly erred by

denying him a sentence adjustment based on his assertion that the

offense was committed “other than for profit.”     See U.S.S.G.

§ 2L1.1(b).   As the defendant seeking the sentencing reduction,

Longoria bore the burden to show the lack of any profit motive.

See United States v. Cuellar-Flores, 891 F.2d 92, 93 (5th Cir.

1989).   Further, the district court was not required to credit

Longoria’s self-serving assertion that he did not receive a

payment over the information contained in the presentence report

(PSR).   See United States v. Brown, 54 F.3d 234, 241 (5th Cir.

1995).   Longoria’s first assertion of error is thus without

merit.

     Longoria also argues that the district court erred by

denying him a sentence reduction because he was a minor

participant in the offense, and by failing to make specific fact-

findings in denying the reduction.   The facts contained in the

PSR had an adequate evidentiary basis and Longoria failed to

present evidence rebutting those facts.   Accordingly, the

district court was free to adopt the findings of the PSR without

further inquiry.   See Brown, 54 F.3d at 242.    Because those

findings indicate that Longoria was not substantially less

culpable than the other participants, he was not entitled to the

reduction pursuant to § 3B1.2(b).    Id. at 241.

     Longoria’s assertion that he should have received a sentence

reduction based on his acceptance of responsibility likewise is

without merit.   Even assuming that Longoria did not intend to

deny the conduct comprising the offense of conviction, he falsely
                           No. 99-20600
                                -3-

and frivolously denied having received a payment from the

undercover agent.   The district court therefore did not err in

denying the reduction.   See United States v. Patino-Cardenas, 85

F.3d 1133, 1135 (5th Cir. 1996).

     The judgment of the district court is AFFIRMED.