United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-51049
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERMAN JOHNSON, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-03-CR-108-2
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Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Ferman Johnson, III, pleaded guilty to possession with
intent to distribute heroin and was sentenced to 78 months’
imprisonment and three years’ supervised release. Johnson argues
that the district court erred in denying him the adjustment for
acceptance of responsibility. He argues that he admitted that he
possessed the heroin and that the truthfulness of his statement
concerning the reason for his trip to Brieger’s house is
irrelevant. He also argues that the evidence in the record was
*
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that this opinion should not be published and is not precedent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. 03-51049
-2-
insufficient to show that he possessed the heroin discovered in
the back seat of the patrol car.
The record of Johnson’s interview with the probation officer
shows that Johnson, despite the fact that he pleaded guilty,
was attempting to distance himself from responsibility for his
conduct comprising the offense. Johnson did not admit that he
went to Brieger’s house for the purpose of delivering heroin
in response to Brieger’s call. Johnson did not admit that he
possessed the heroin; he stated that the truck was Brieger’s and
that he knew heroin was in the truck. Johnson’s statements were
a sufficient foundation for the district court to conclude that
he had not truthfully admitted the conduct comprising the offense
of conviction and thus had not clearly demonstrated acceptance
of responsibility. U.S.S.G. § 3E1.1(a) and comment. (n.1(a));
United States v. Vital, 68 F.3d 114, 121 (5th Cir. 1995).
Johnson also argues that the district court’s reliance on
the fact that he received an upward adjustment for obstruction of
justice under U.S.S.G. § 3C1.2 for reckless endangerment during
flight was erroneous because the guidelines limit the denial of
acceptance of responsibility based solely on conduct arising
under U.S.S.G. § 3C1.1. He argues that because U.S.S.G. § 3E1.1
specifically mentions U.S.S.G. § 3C1.1, it excludes U.S.S.G.
§ 3C1.2 by implication.
Reckless endangerment during flight is included in the
general guidelines section on obstruction, and a district court
No. 03-51049
-3-
would be within its discretion to determine that a defendant
who engages in conduct warranting an upward adjustment for
reckless endangerment during flight has not clearly demonstrated
acceptance of responsibility, especially when he later denies
the conduct warranting the obstruction adjustment.
AFFIRMED.