[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12085 ELEVENTH CIRCUIT
JUNE 29, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 03-00054-CR-ORL-18-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO A. LINARES,
a.k.a. Edgar,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 29, 2011)
Before EDMONDSON, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Sergio A. Linares a/k/a “Edgar” appeals his 121-month total sentence,
imposed at the low end of the applicable guideline range, after pleading guilty to
one count of possession with intent to distribute 1,000 kilograms or more of
marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(vii) and 18 U.S.C. § 2.
On appeal, Linares argues that the district court erred in denying a reduction in his
offense level for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, even
though the court imposed a two-level obstruction of justice enhancement.
We review the district court’s determination per U.S.S.G. § 3E1.1 for clear
error. United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005). Because
the district court’s determination regarding a defendant’s acceptance of
responsibility is entitled to great deference, we will not set aside the district court’s
decision that a defendant is not entitled to a downward reduction for acceptance of
responsibility unless the record clearly establishes that the defendant accepted
responsibility. Id. at 1022-23.
The district court did not clearly err in finding that Linares was not entitled
to a downward reduction for acceptance of responsibility. Although Linares pled
guilty, he had absconded for more than five years prior to making that guilty plea,
and he admitted at the sentencing hearing that part of his remorse was that he had
been caught after absconding. The district court could reasonably determine that
Linares’s conduct between his indictment and his return to custody was not
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consistent with acceptance of responsibility.
Furthermore, the district court did not plainly err in determining that Linares
was not entitled to an acceptance of responsibility reduction. Although the district
court did state that Linares would be entitled to an acceptance of responsibility
reduction, the court did not calculate Linares’s applicable guideline range at the
hearing or then determine what sentence Linares would receive. The plea
agreement made clear that the court was not bound by the government’s
recommendations regarding any sentencing recommendations and, in fact, could
reject those recommendations, including the recommendation regarding a three-
level reduction for acceptance of responsibility.
AFFIRMED.
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